Recognizing Excessive Force

Earlier this month an Albuquerque Police Department (APD) officer was charged with misdemeanor battery and aggravated battery after investigators reviewed lapel camera video from an incident that occurred in May. The officer who was charged with aggravated battery can be seen in the video forcefully entering an apartment without a warrant and tasing a screaming man repeatedly.

Later in the video, a second man was arrested outside of the apartment. The man had lain on the ground and can be heard yelling, “I surrender!” as officers approach. Another officer stepped on the screaming man’s face, as the accused officer replied, “Oh, you surrender, huh?” The accused officer then punched the man three times while cuffing him.

What is Excessive Force?

Law enforcement officials, citizens, experts, and attorneys agree that officers sometimes find themselves in situations that necessitate the use of force. Administrators of policing organizations have the responsibility to ensure that officers are instructed and trained to use ‘reasonable force’, or force that is not excessive and that is appropriate for protecting themselves and other community members. When an officer goes beyond reasonable force, using unreasonable or unnecessary force under the circumstances—that crosses the line.

‘Excessive force’ may involve kicking, shoving, striking, tasing and even shooting of non-violent, non-aggressive citizens during policing actions in the community. While we encourage the enforcement of laws, community members should not be abused by the misuse of power.

In the case mentioned above, the charge of ‘aggravated’ battery levied against the officer stems from evidence that the officer intended to injure the man who had surrendered and was not attempting to intimidate or injure the officer.  If you feel that you have been a victim of excessive force in our community, contact an attorney to discuss your rights and the specific situation in which you feel your rights were violated.  

Let's Decriminalize School Children

               Awareness of the School to Prison Pipeline (STPP) has materialized on the national scene. The Prevention Intervention Program for Youth (PIPY) collaborative is being formed in Albuquerque as a response to the failings of a ‘zero tolerance’ policy that has lead to student arrests and deprivation of education. It is no coincidence that other communities who suffer from the STPP issues have been implementing zero tolerance policies within their schools.

                In most cases, zero tolerance policies are implemented with a great deal of discretionary leeway and students are removed from the classroom setting in response to varying levels of misbehavior. This is having the effect of moving minority and special education students into the pipeline’s fast sweeping current.

In the state of New York, community organizers are protecting children’s rights to a quality, free public education. One very vocal group of community organizers has been the New York Civil Liberties Union (NYCLU).

                The New Settlement Parent Action Committee held a roundtable in June 2012. Attendees included representatives from the New York Department of Education (NYDOE), the New York Police Department (NYPD), and the NYCLU.  The meeting was held to discuss the high number of student arrests. NYCLU testified regarding zero tolerance policies that had lead to a STPP in their community. The NYCLU’s suggestions to New York Department of Education included a number of strategies for keeping children out of corrections and in class:

Train school staff and officers to perform positive interventions, with an emphasis on mediation and restorative practices

Restoring disciplinary authority to school staff, reserving the ‘zero tolerance’ approach for the most serious infractions

Using progressive disciplinary actions, in proportion to infractions committed

Clarifying the roles of officers in schools and their role in disciplinary actions, especially when dealing with children who have special needs

 Clarify the due process protections for children, educate children, parents, school staff and officers

Safeguard free speech and religious protections for children

                In the wake of the meeting, NYCLU filed a lawsuit against the New York Police Department for “wrongly arresting and using excessive force against children”. Last year, according to NYPD, 882 students were arrested in their jurisdiction. The effects of the NYCLU’s lawsuit have yet to be seen as students return to school this fall. A great deal of learning will come out of exploring how other states and districts go about dismantling their own STPPs while restoring the balance between authority and freedom in the classroom. At the same time, the Kennedy Law Firm continues to advocate for the civil rights of children and parents in New Mexico. We hand much authority over to school administrators and teachers. If an injury occurs to a school child due to restraint, physical abuse or sexual abuse, we want to make sure that parents are aware of their rights and will seek to protect their children from the criminalization of school children. 

The Prevention Intervention Program for Youth (PIPY)

Communities need to do more to stop the flow of children into juvenile detention facilities. As illustrated in the Kennedy Law Firm’s recent School-to-Prison Pipeline blog, when it comes to disciplinary actions that combat problematic, non-violent childhood behaviors—we need healthy alternatives to handcuffs. Schools have a number of options when dealing with youth in need of extra support. Individualized Educational Plans (IEPs) and Behavioral Intervention Plans (BIPs) are just two examples of formalized educational support plans that can benefit many special needs or at-risk youth. In recent years, officers have been working in schools, and the interplay of disciplinary authority between educational staff and officers has made it necessary to utilize new strategies to deal with unwanted behaviors. The Prevention Intervention Program for Youth (PIPY) is an effort to do just that.

Through the Safe Schools Healthy Students Initiative, partnerships are being made. Albuquerque Public Schools (APS), the Bernalillo County Youth Services Center (YSC), the Second Judicial District Children’s Court, Juvenile Probation and Parole, and other community programs have come together to help youth in crisis.

These organizations are making an effort to work cooperatively to screen at-risk youth and support them with programs that prevent their introduction to juvenile correctional institutions; provide services that springboard children out of corrections and back into an educational environment; and build community collaboration by increasing access to behavioral health services.

Through uniform communications and referrals between educational, behavioral health and courts agencies, the involved organizations are working to meet a number of goals:

To reduce the number of children in corrections facilities and their likelihood of returning;

To increase support services for children before their introduction to correctional programs;

To increase communications, services and supports for children released from court programs;

To improve interagency communications;

And to head-off court involvement through behavioral health support and educational plan implementation.

Thereby, stopping at-risk children from becoming part of the school-to-prison pipeline. 

School-to-Prison Pipeline

The Kennedy Law Firm has achieved a significant victory in protecting the civil rights of children who have been handcuffed in schools. A recent agreement with the City of Albuquerque will help to stem the tide of the school-to-prison pipeline in Albuquerque. The agreement requires parent notification and stops the arrest and transport of non-violent children to juvenile detention facilities where they are at risk of becoming part of the School-to-Prison Pipeline. The Albuquerque Public Schools have, so far, refused to take part in the agreement with the City of Albuquerque.

The School-to-Prison Pipeline is fed when educational institutions, like APS, implement widespread use of handcuffing, arrest, and/or transport of children from schools to detention facilities in response to non-violent, disruptive actions and in response to the outburst of children with disabilities. The City of Albuquerque’s and the Albuquerque Public Schools’ practice of transporting misbehaving children to jail has unnecessarily exposed children to the juvenile justice system. 

Punitive responses have been unfairly applied to special education students and to minorities, depriving detained children of their guaranteed right to education. Education is a constitutional property right in the State of New Mexico; children are entitled to a quality education regardless of their race or special needs backgrounds. Exposure to the justice system leads to devastating academic consequences, social-emotional hardship, drop-out, lack of opportunity, and an increased likelihood of incarceration as a child becomes an adult in our community. Our goal is to end the school-to-prison pipeline in New Mexico.

Stop Handcuffing School Children

          The Kennedy Law Firm is taking the lead in stopping school children from being handcuffed and transported to jail for minor acts of misbehavior. Already, in the lawsuit, we have received an agreement from the City of Albuquerque to stop transporting children to jail for minor offenses, such as allegations of disrupting class.

          We believe that there is rarely ever a reason to handcuff children and never a reason to handcuff children under thirteen. We are seeking an end to the handcuffing of young children.

           The agreement with the City provides that:

            Children detained at school for an allegation of the commission of interference with public education; resisting, evading or obstructing an officer; disorderly conduct; public affray; possession of drugs or drug paraphernalia; resisting a police officer; criminal trespass; or any other allegation of a misdemeanor crime not involving an act of violence will not be transported to the juvenile detention center.

            Whenever a child is detained, the officer detaining the child is responsible to telephone the parents or legal guardians of the child.           

            If the parent or legal guardian of the child is not available, the child should be left in the custody and control of the school administration or transported to the New Day’s Reception and Assessment Center (RAC).

            Treating our children like criminals harms our children and harms our community.

"De Minimis" Injury in Excessive Force Claims Defined by 10th Circuit

What makes a seizure unreasonable when interpreting the Fourth Amendment to the United States Constitution?  How should reasonable be interpreted at the summary judgment stage, for the purposes of determining whether a police officer is entitled to qualified immunity? Recently, the United States Court of Appeals for the Tenth Circuit significantly clarified competing doctrines in this area, releasing an opinion authored by Judge Tymkovich in the case of Robert and Mary Fisher v. The City of Las Cruces, 2009 U.S. App. LEXIS 22825 (10th Cir. N.M. Oct. 19, 2009).


The Court recited the background of this strange case:  


“After consuming at least two doses of Xanax, an anti-anxiety prescription medication, and the better part of a pint of vodka, Robert Fisher passed out in his backyard. When he awoke, he began to hallucinate that a large animal was threatening him. Fisher ran inside, retrieved a 9 millimeter handgun, and returned to the backyard to confront the illusion. Staggering and delirious, Fisher instead accidentally shot himself in the stomach. As he fell to his knees, his gun discharged again and a second bullet struck him in the left bicep.”


Id. at 22825.  Las Cruces police department Officers Joann Schnell and Roberto Gutierrez responded to the scene, finding a bewildered Robert Fisher in the backyard, with his shirt off, nursing his wounds.


After retrieving Fisher’s gun, Officer Gutierrez ordered Fisher to lay on his bleeding stomach and spread his arms over his head. Fisher resisted this order, telling the officers that he could not comply due to his injuries. After repeating these orders, Fisher again did not comply.  Officer Schnell then proceeded to handcuff Fisher behind his back.  Because of the swelling to Fisher's bicep, she placed her knee into Fisher's back, in order to leverage his arms behind his body.


“Fisher begged not to be handcuffed in this manner. As he later reported: "I  protested the handcuffing behind my back. I told the officers that it was not necessary and to consider my wounds. . . . I begged her not to handcuff me behind my back." Aplt. App. 77. The manner in which he was handcuffed--with a knee to his back, placing pressure on his stomach wound, and with his arms brought behind his body--caused, in Fisher's words, ‘excruciating pain. It felt like my bicep was tearing.’ Id. at 78.”


Id. at 22825.  Fisher sued the officers under Section 1983, claiming the officers used excessive force, in violation of his rights under the Fourth Amendment.  The District Court ruled against Fisher at summary judgment, claiming his injuries were minor, and he had not offered enough evidence “that he suffered a non-de minimis injury.  Id. 

          After surviving the two-part test laid out for qualified immunity explained in Martinez v. Carr, 479 F.3d 1292, 1295 (10th Cir. 2007) , the Court reviewed United States Supreme Court doctrine found in Saucier v. Katz, 533 U.S. 194, 121 (2001).  The Court requires establishment of 1) a violation of a Constitutional right and 2) that the right was clearly established.

          Following this analysis, the Court moved on to several balancing factors found in Graham v. Connor, 490 U.S. 386 (1989) to explain that a seizure’s reasonableness turns not just on why or when it is made, but also on how it is accomplished.  In some circumstances, an inquiry into objective reasonableness won’t just focus on why, but also how.  The Court cited Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007), for the proposition that, “If the plaintiff can prove that the officers used greater force than would have been reasonably necessary to effect a lawful arrest, he is entitled to damages resulting from that excessive force."

          Applying prior doctrine, the Court analyzed, “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396.  The Court drew extensively on Buck v. City of Albuquerque, the war protestor case from 2003, in which the city was sued for excessive force in dealing with individuals exercising their 1st Amendment rights:


“We do not agree with the concurrence that Buck v. City of Albuquerque, 549 F.3d 1269, 1290 (10th Cir. 2008), rejected a de minimis injury requirement where the injury occurs during the course of handcuffing. The facts of the case make it clear why not. Doyon (the only person even handcuffed) did not attempt to flee, or pose a threat to any officer or individual, but nonetheless, the ‘officers grabbed him, dragged him, and pushed him face down on the pavement. One officer kneed him in the back and pinned him to the ground. An officer pushed him face forward onto the roof of a police car, and he was exposed to tear gas while handcuffed in the car.’ Id. at 1290. … Doyon was exposed to gas while handcuffed in the police car.  Buck, in short, cannot fairly be read as a case in which excessive force arises solely from the manner in which officers applied handcuffs, rather than from force independent of the handcuffing itself.”


Fisher at 22825.


Finding that discharge of a gun in the city limits of Las Cruces is only a petty misdemeanor, and therefore not a severe crime, and viewing facts in light most favorable to the Plaintiff, the Court concluded in Fisher’s favor on all three Graham factors.  The Court found that a reasonable juror could find injury, if even tiny injury.  Either way, physical injury was not required, so long as emotional injury, or dignitary injury, could also be independently found.  Remand for further proceedings and trial was appropriate.

Stating a clear rule of law, “In Cortez we explained that in a handcuffing case ‘to recover on an excessive force claim, a plaintiff must show: (1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis, be it physical or emotional." Id. at 1129.  Fisher at 22825.

In a concurrence on the judgment by Judge Gorsuch, he took issue with a rule requiring a showing of actual injury. “[O]utside the context of a claim alleging overly tight handcuffing, proof of injury [either physical or emotional] is not essential to an excessive force claim. See [Cortez] at 1129 n.24.  “… [T]he circumstances of an encounter . . . may themselves be so outrageous as to demonstrate excessiveness’ without any evidence of a consequent injury).”   Fisher at 22825.


-Derek Garcia for the Kennedy Law Firm


LULAC Joined by Southern Christian Leadership Conference Calling for Federal Ban on Tasers

     Last week, the League of United Latin American Citizens (LULAC) was courageously joined by the Southern Christian Leadership Conference (SCLC) in its call to ban the use of the Taser device nationwide. On September 8, 2009, the SCLC, whose first President was Martin Luther King, Jr., joined the Latino organization’s call to stop this brutal and inhumane practice by police officers. LULAC started to build momentum for this push to end the use of tasers in Albuquerque, New Mexico on August 15, 2009, holding a national press conference on the steps of City Hall. SCLC will be putting major pressure on the Obama administration (pressing Congress in the coming months) to outlaw a practice already classified as “torture” by the United Nations.

The push came after 14-year-old Kailee Martinez of Tucumcari, New Mexico was brutally struck in the head by a Taser dart. She now has 18 staples and 6 stitches on her head, thankful that she did not lose her life, compared with New Mexico’s 4 other lethal cases.

According to Truth Not Tasers, there have been 443 individuals killed by tasers in North America, as of July 1, 2009.  Amnesty International placed the fatality number at 330 since 2001, while excluding cases resulting in severe brain damage, acoma, or a vegatative state.

Other recent cases of police brutality include a 14-year-old middle schooler with autism from Indianapolis, IA, who was tasered twice for “acting out” in school. Instead of following the IEP and individual discipline plan for the autistic child, school authorities resorted to police intervention. Robert Smith of Indianapolis despicably labeled the incident as simply “enabling” the child, only encouraging him to “cross the line” further and disrespect police authority in the future. One wonders what would have occurred to Rosa Parks had tasers been in use in Montgomery, Alabama in 1955.

Several lawsuits have unsuccessfully challenged TASER International, Inc.’s claims that use of the device is a “non-lethal” alternative to older-fashioned methods of police brutality, challenging the device on products liability grounds. These lawsuits have met with limited success, however, and have yet to thoroughly penetrate America’s political consciousness. An incomplete list includes: Powers v. Taser Intern., Inc., 2007 WL 5446674; Williams v. Taser Intern., Inc., 2007 WL 1630875 (N.D.Ga. 2007); Neal-Lomax v. Las Vegas Metropolitan Police Dept. 2006 WL 2668190; and other big cases. 

Over the summer, in a huge victory against TASER International, a California jury awarded $6.2 million to a man wrongfully and excessively tased.  The victory is the first ever against Taser International in a product-liability claim.  TASER is appealing the award.

In Merced, California, an unarmed black man in a wheelchair, Gregory Williams, was excessively tased for no justifiable reason.  Gregory had no legs at the time of incident (and therefore fleeing was not a possibility), as shown in this video.  Mr. Williams lost his legs to gangrene previously, along with his job as a truck driver.  No resolution from the incident is known at this time.

In Michigan, a 15-year old was tasered to death after bailing out of his Dodge Stratus, having done nothing more than drive on an expired license plate.  After being shocked a single time by police, he paid the death penalty for driving on expired tags.  A second Michigan case was that of 15-year-old Brett Elder, who was executed by taser after wanting to fight the police bare-handed.  In all of the cases, the juveniles were completely unarmed.

“50,000 volts of shock can damage your nerves, can cause cardiac arrest and death. Your nervous system is a series of delicate cords,” said Ralph Arellanes of Albuquerque, New Mexico, LULAC’s District 1 Director and Chairman of the Hispano Roundtable of New Mexico. “We have medical professionals that say it hasn’t been tested enough by science, and there is no statistical evidence that Tasers actually save lives. If anything, lethal encounters between officers and civilians have actually increased.”

Arellanes attributes this to the fact that Albuquerque’s police training manuals falsely list a Taser as equal in force to that of mace or pepper spray, another assertion without any credible evidence. He believes there is a high percentage of police officers abusing tasers and too many innocent people are getting tased and dying at the hands of these police officers as a result of this abuse.

“Even good officers lose their temper from time to time ... Some love to watch people squirm and scream,” Arellanes observed, noting that it is often fun for officers to deploy the devices. “The abuse of these devices by police departments is widespread. Some of them enjoy watching people electrocuted,” while others he characterizes as simply numb or insensitive to the damage being caused.

In Tucumcari, Police Chief Roger Hatcher is back on the job six weeks after using a Taser stun gun to deliver 50,000 volts to apprehend a 14-year-old girl, all to stop her from running away from her mom and sending text messages to her friends.   Perhaps because of misleading information provided in training or various other issues, this young girl suffered unnecessary damage by the Taser. All in a day’s work and simply business as usual, without a second thought to the damage, both physically, psychologically, and to the community at large. 


-Derek Garcia for The Kennedy Law Firm

Kennedy & Oliver Prosecuting Class Action against Albuquerque over Cash Seizures

Kennedy & Oliver is happy to report that it is one step closer to a complete resolution of its class action against the City of Albuquerque related to the seizure and disposition of cash from citizens. Kennedy & Oliver is in the process of receiving and organizing police reports and assuring that the City of Albuquerque is abiding by state law in regard to seizure and disposition of cash. Once individual victims have been identified, Kennedy & Oliver will notify victims of their rights and the process for claiming damages.

On April 26, 2006, the Second Judicial District Court in Bernalillo certified a class of all people whose cash Albuquerque police officers have seized and retained beyond thirty (30) days from July 1, 2002 to the present. Since April 26, 2006, Kennedy & Oliver has been successfully obtaining information from the Albuquerque police related to identities of individuals whose cash Albuquerque police seized.

The lawsuit was brought as a result of a change in New Mexico law on drug forfeitures. On July 1, 2002, New Mexico law changed the process for seizures and forfeitures of cash that law enforcement alleges is the proceeds of drug sales. The law requires that the police deposit the seized cash with the district court clerk and that police return the cash or file a forfeiture complaint against an individual within thirty (30) days of seizure.

Through its representation of indivdual clients, Kennedy & Oliver discovered that the City of Albuquerque police department was ignoring the law. Kennedy & Oliver filed a lawsuit to force the Albuquerque police to disgorge itself of thousands of dollars of seized cash. The Albuquerque police department has admitted its errors and agreed to the class action format as an appropriate method of returning the seized cash to individuals.

Kennedy & Oliver also has pending lawsuits against Bernalillo County, the New Mexico Department of Public Safety, Dona Ana County and Cahvez County for their handling of cash seizures.

If your cash was seized in the State of New Mexico by a state officer, please contact us to discuss possible representation.

Al Unser Acquitted in Albuquerque' Metropolitan Court

Recently, race car legend, Al Unser, went to trial on charges of refusal to obey an officer and on charges of resisting arrest. I attended some of the trial in Metropolitan Court in Albuquerque. Al Unser's testimony was similar to stories we have heard many times before.

He testified that he was trying to drive onto his property near Central and Unser Boulevards, when Bernalillo County Sheriff's officers ordered him to stop and turn around. Mr. Unser testified he obeyed the command, but did not like the way the officers yelled at him. On his way out, he left his car and asked an officer for his card so that he could report the officer to his superior. If Mr. Unser's testimony is believed, the simple act of challenging the officer's behavior prompted the decision to arrest Al Unser - a seventy-some year old man with significant physical disabilities.

The arrest of a citizen for verbally protesting police action or for asking for the identity of officers violates your Fourth Amendment to be free of unreasonable seizures as well as your FIrst Amendment right to free speech.

Update and Sonderstand Comment

I'm afraid I have fallen behind in my case reviews. I will be giving a seminar here in Albuquerque in early December on police liability issues. Last year, that seminar was a good occasion for me to catch up on new cases. So, I anticipate I will be doing the same this year in October and November. I love this area of the law and I want this site to become a resource for the bar and public to keep up to date on the fourth amendment.

As we blogged previously, Ms. Oliver and I received a nice result from a jury for our client in July. We also tried a wrongful arrest case in late August that resulted in a plaintiff's verdict. The issue was one of first amendment retaliation. The trial judge in the Sanchez case recently denied the defendant's post-trial motions, including a request for remittitur. That opinion is available on the court's website.

Ms. Doris Al-Harake and her sister gave me a spirited response to my blog on the Sonderstand case. You can read Ms. Al-Harake's comment on the July 6, 2005 blog. When I read Ms. Al-Harake's e-mail, my initial reaction was relief that I am not the only person who has read a Tenth Circuit opinion, in which I was personally involved, and thought - "huh, Where did they get these facts?" Ms. Al-Harake was the "clerical employee" I referred to in the blog. The Tenth Circuit refers to her by name in the opinion.

Let me first say to Ms. Al-Harake that I find your actions and curiosity on the whole safe issue perfectly understandable. I am a bit of a snoop myself. My objection was to the court's conclusion on the fourth amendment issue. My objection was the court's finding that you were a "private citizen". I believed that your status as a public employee should have resulted in a different analysis of your activities.

As to your specific corrections, I can only say that I was relying on the facts as the Tenth Circuit recited the facts. The Court states you viewed the CD on your office computer. I am sorry the Court got that fact wrong. No doubt your family and your peers should be proud that you exposed the storage of child pornography at a public university. I don't doubt that you operated in good faith as a concerned employee and citizen, but I differ with the Court as to whether the evidence you discovered should have been used in a criminal prosecution.

In Albin v. Bakas, First Judicial District Court Judge James Hall granted summary judgment to the State of New Mexico finding that the federal forfeiture act pre-empted our state law. We have appealed and have filed a docketing statement.

Again, I hope to resume case reviews shortly. I also look forward to more feedback on specific cases as well as the blog site.


Kennedy & Oliver Obtain $3.2 Million Verdict for Survivor of Sexual Molestation

On Friday, July 22, 2005, a jury in the United States District Court for the District of New Mexico awarded L.S., a nine year old child, $1.2 million in compensatory damages and $2 million in punitive damages. On May 8 2002, a substitute teacher molested L.S. and two of her first-grade classmates at Esperanza Elementary School in Farmington. L.S. suffered Post-Traumatic Stress Disorder as a result of the molestation. Sanchez v. Brokop, CV 04-134 (D.N.M., Magistrate Judge Leslie Smith, sitting by consent)

Obviously, this was a gratifying victory for a young girl who is still very much at risk for educational failure because of a teacher's actions. Kennedy and Oliver worked on this case for eighteen months. The highest settlement offer L.S. received was $300,000, including costs and attorney fees. This offer was made after a year of litigation.

The insurer in this matter, New Mexico Public School Insurance Authority, was the most mendacious public entity I have ever litigated against. Before our client's mother retained Kennedy & Oliver, an insurance, money grubber invited mom to a Denny's in Farmington and offered her $10,000. When she did not accept the offer, he falsely told her that there was a cap of $250,000 in damages and she shouldn't hire a lawyer because he would just take one-third of the money for doing little work.

The result would not have been possible without our expert Gilbet Kliman, M.D., a psychiatrist in San Francisco and Director of the Children's Psychological Health Center, Inc., a non-profit organization that works with traumatized children.

The claims were made under 42 U.S.C. Sec. 1983 and alleged a deprivation of Fourteenth Amendment Rights to Equal Protection and Substantive Due Process. The defendant plead guilty to criminal sexual contact and admitted liability. The guilty plea allowed us to proceed to trial without our client's testimony. We were able to tell L.S.'s story through her mom and Dr. Kliman.

Of particular note, the defendant actually testified at trial. Defense counsel apparently believed an apology would enable them to argue that no punitive damages were warranted. However, the defendant asserted his Fifth Amendment Right to refuse to testify about any previous acts of sexual molestation. He also asserted a privilege against disclosing his conversations with counselors in prison.

Ms. Oliver gave a truly beautiful rebuttal argument, which included an analgoy between his staged apology in court and his molestation of L.S. When he turned to apologize to our client's mom, she broke down weeping and turned her back to him. He continued with the apology while our client's mom's shoulders were heaving. Ms. Oliver pointed out that he continued depsite how obvious it was that he was hurting her, because he wanted to selfishly relieve himself on her. Ms. Oliver said that that was just like the molestation itself. He did not care about the damage he was causing; he wanted to continue to gratify himself.

State University Employee's Search of Safe Held Not Government Action

In a decision that has far-reaching consequences for school searches, the Tenth Circuit held that a state employee's search of a safe "out of curiosity" did not implicate Fourth Amendment concerns because the state employee did not intend to look for evidence of a crime. United States v. Soderstrand, 04-6024 (June 16, 2005). The state employee was a "clerical employee" at a public university.

In the same opinion, the Tenth Circuit also approved a search warrant for pornographic images of children, despite no allegation in the search warrant that the images were believed or known to be lascivious. Citing, Illinois v. Gates, 462 U.S. 213 (1983)(probable cause showing in affidavit is less than necessary to convict).

However, the more important aspect of the opinion appears to be how the Tenth Circuit disposed of the defendant's challenge to a government official's search of a personal safe without a search warrant.

The defendant was head of the Electrical Engineering Department at Oklahoma State University. A clerical employee in the same department found a gray, fireproof safe in a department supply room. The clerical employee contended she was unaware of the identity of the owner. From the opinion, it did not appear that the safe was in a private or secure location. The safe was locked, but the clerical employee contended the key was in the lock.

The clerical employee opened the safe, ostensibly to determine who owned it. Inside the safe were "three compact disks, five Polaroid photos, twenty-seven 35mm photos, four personal letters and sixty-three 3.5mm computer diskettes. There were letters addressed to "Michael" and "Dr. Michael Soderstrand," and other letters were signed as "M. Soderstrand." There were also photos of Dr. Soderstrand. The Tenth Circuit failed to comment that the clerical employee undoubtedly knew the identity of the owner of the safe at this point.

Unhappy with merely knowing the identity of the owner, the state employee decided to snoop some more. The clerical employee was curious, so she decided to view one of the good doctor's CD's on her office computer. When she looked, she found "an image that appeared to be several nude Asian children about 10-12 years old." The employee reported the discovery to the dean, who in turn called in the police. The campus cops seized the safe and put it in their safe for - safekeeping. The cops secured a warrant and busted the head of the Electrical Engineering Department (in between breaking up beer parties and combating hooliganism on campus).

The Tenth Circuit casted the state-paid employee, acting on school grounds as a private, curious citizen:

To determine whether a private person's search becomes a Government search, the court examines "(1) whether the Government knew of and acquiesced in the intrusive conduct, and (2) whether the person searching intended to assist law enforcement efforts or to further his [or her] own ends." United States v. Souza, 223 F.3d 1197, 1201 (10th Cir. 2000). Dr. Soderstrand does not contend that law enforcement officers coerced, dominated or directed Al-Harake, or that she otherwise conducted her search pursuant to any law enforcement or other governmental objective. Rather, as he admits, "Al-Harake simply became curious about the safe and its contents."

Am I the only one who noticed that her position as an employee of a public university, acting within her work area at the public university, and using her governmennt owned computer to conduct a search of a private CD, combine to give her the appearance of a state actor and not a private citzen? More to the point, why do we need to determine whether she was coerced by police when she plays on the same team? In sum, a poorly reasoned decision characterized by "conspicuous ignorance" of the obvious. Classic Tenth Circuit reasoning.

Civil Rights Win for Teen Interrogated and Threatened by Social Worker

In a stunning reversal of the district court's entry of summary judgment for a social worker, the Tenth Circuit ruled that a teen's complaint alleging a two hour interrogation, laced with threats of arrest, in a school counselor's office was sufficient to defeat the social worker's defense of qualified immunity. Jones v. Hunt, 04-2108 (June 14, 2005). Jane Gagne of Albuquerque represented the plaintiff on appeal and continues to represent her in district court.

The highlight of the opinion is the Tenth Circuit's conclusion that a seizure occurred (assuming plaintiff's version of the facts) despite no orders to remain and no use of physical restraints.

The Tenth Circuit listed the factors it considers in determining whether a person is seized within the meaning of the Fourth Amendment:

1) the threatening presence of several officers; 2) the brandishing of a weapon by an officer; 3) some physical touching by an officer; 4) use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; 5) prolonged retention of a person's personal effects . . . ; 6) a request to accompany the officer to the station; 7) interaction in a nonpublic place or a small, enclosed place; 8) and absence of other members of the public.

[United States v.]Hill, 199 F.3d at 1147-48. We have refused to treat any of the factors cited above as dispositive. United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997); United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (en banc) ("only in rare instances will any one factor produce an inexorable conclusion that a seizure has occurred."). Nor are these factors exclusive. See United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993) ("we have avoided hard line rules to govern this analysis, and our opinion today should not be interpreted as an exhaustive pronouncement."). Rather, we base our Fourth Amendment analysis on the "totality of the circumstances." United States v. Shareef, 100 F.3d 1491, 1505 (10th Cir. 1996) (citation omitted). When viewing the totality of the circumstances, it may be that the strong presence of two or three factors demonstrates that a reasonable person would have believed that he was not free to terminate an encounter with government officials.

The Tenth Circuit then proceeded to explain that it views the detention "through the eyes of a reasonable sixteen year old". The Court concluded that viewed through a juvenile's eyes the encounter was a detention.

The Court rejected the district court's finding of no seizure, which was premised upon a finding that the social worker and the uniformed police officer who accompanied the social worker were merely discussing custody. The Court found that, based on the threats, the teen could reasonably believe that her leaving the encounter in the counselor's office would result in her arrest.

Finally, the Court rejected the defendant's argument that seizures in schools face a less rigorous standard of reasonableness. The Court noted that the cases easing the reasonableness standard for school administrators were based on a recognition that schools must be able to perform their educational function. The seizure of Ms. Jones had nothing to do with the administrative function of the school.

Albuquerque Police Misconduct Lawsuit Results in Jury Verdict

In a case tried in Santa Fe, a young man was awarded $100,000 after a jury found that the officer used excessive force in his detention. The jury found for the defendants on claims of false arrest and unreasonable detention and awarded no punitive damages for the excessive force. The jury also found for Defendant Sheley on the state law battery claim after the district court (wrongly in my estimation) instructed the jury that a battery is actionable only if done in a rude, insolent or angry manner (criminal law standard). Albuquerque attorneys Adam Baker and Paul Kennedy represented the young man, who suffered fractures of the humerus bone (upper arm). Arendt v. Sheley, 03cv1188. The Albuquerque Tribune article follows.

City to pay $100,000 in officer attack
By Maggie Shepard
Tribune Reporter
June 11, 2005

An Albuquerque police officer's actions will cost the city $100,000, the amount awarded to a man he is accused of pepper-spraying and whose arm was broken during a September 2003 incident.

On Wednesday, a federal jury in Santa Fe found Officer Keith L. Sheley liable for using excessive force against Adam Arendt, 31. Arendt had been walking Downtown with his girlfriend when he was assaulted, according to court documents.

Sheley, responding to the assault, pepper-sprayed Arendt and pushed him against a wall, breaking his arm, according to court documents.

Claims that Sheley and his supervisor, Steven Hall, falsely arrested, neglected and unlawfully detained Arendt were dismissed, said Kathryn Levy, the city attorney assigned to the case.

Sheley, still with the Police Department, now works in the Valley Area Command.

The department has concluded an internal investigation into the incident, police spokeswoman Sgt. Beth Paiz said.

The results of the investigation and any administrative action - which could include suspension, a reprimand or retraining - for Sheley is confidential, Paiz said.

Levy said the $100,000 judgment was for compensation, not for punitive reasons.

There were no criminal charges filed in the incident, but the department was alerted to Arendt's lawsuit as a matter of policy.

Any lawsuit involving a police officer is forwarded to the department's internal affairs unit, said Charles Kolberg, a city risk manager.

Usually, though, Kolberg said, complaints are filed with the police department or the city's Police Oversight Commission before lawsuits are filed.

Levy said the city has not decided whether to appeal the case.

Officer Safety Concerns Justified Warrantless Search of Truck

On January 23, 2003, at about 3:00 a.m., James Bryan (Macine Gun)Dennison was in his gold truck, with camper shell, hanging out with his pal, Keith Allen, in the parking lot of an apartment complex in Englewood, Colorado after having been involved in a "domestic" with his girlfriend. Mr. Dennison and Mr. Allen had five handguns, three rifles, three shotguns, and two machine guns on board, as well as some drug paraphernalia. Mr. Allen had four outstanding felony warrants. When an Englewood officer came by to investigate, he found the warrants for Mr. Allen and searched the truck. The feds charged Mr. Dennison with possession of the machine guns. The Tenth Circuit affirmed the denial of Mr. Dennison's motion to suppress. United States v. Dennison, 04-1062 (June 8, 2005).

The Tenth Circuit had to stretch to get Machine Gun Dennison. The opinion involves issues related to searches incident to arrests, protective sweeps, and reasonable suspicion when in the company of others.

The defendant challenged the initial detention. An officer had asked the defendant what he was doing in the apartment complex. Dennison was waiting for a tow truck to tow his other truck before his girlfriend could bash the bejesus out of it. The officer came around a second time after realizing he had heard a call for a domestic violence offender driving a gold station wagon. The officer asked for and received identification from the men. The officer discovered the warrants for Mr. Allen and arrested him. One warrant was for a violent crime and another was for a weapon's violation. The Tenth Circuit approved the investigative stop, because of the high crime area, the time of morning, the distance of the men's location from the truck, and the unusual nature of the activity.

The Tenth Circuit stretch comes in the search of the car. The district court approved the search based on a search incident to the arrest of Mr. Allen. The problem was that the government failed to show that Allen was still on the scene when police searched the truck. Thus, the Tenth Circuit said no valid search incident to an arrest.

A search incident to an arrest pre-supposes that the arrestee remains on the scene:

"[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of the arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. 454, 460 (1981) (emphasis added). This court has concluded, however, that "[a] warrantless search incident to arrest is not valid if it is 'remote in time or place from the arrest.'" United States v. Lugo, 978 F.2d 631, 634-35 (10th Cir. 1992) (quoting Chimel v. California, 395 U.S. 752, 764 (1969)). A search incident to arrest is unlawful when a suspect is arrested, removed from the scene, and en route to the police station when the search of the arrestee's passenger compartment begins. Id. at 635

So the Tenth Circuit went stretching for another basis for the search. The Tenth Circuit approved the search of Mr. Dennison's truck because his passenger, Mr. Allen, was a bad dude:

Like [United States v. Maddox, 388 F.3d 1356, 1359-60 (10th Cir. 2004)], officers here were assisting in the late-night arrest of a potentially dangerous suspect in a high-crime area. Though occupants in Mr. Dennison's truck did not outnumber officers, the scene remained dangerous; at 3:00 a.m., officers could not see inside Mr. Dennison's truck, and they knew that Mr. Allen had multiple arrest warrants. Because a Long investigation "at close range" requires an officer to make a "quick decision as to how to protect himself and others from possible danger," the Supreme Court does not require "that officers adopt alternate means to ensure their safety in order to avoid the intrusion involved in a Terry encounter." Long, 463 U.S. at 1052 (quoting Terry, 392 U.S. at 24, 28); see also Thornton v. United States, 124 S. Ct. 2127, 2137 (2004) (Scalia, J., concurring) ("When officer safety or imminent evidence concealment or destruction is at issue, officers should not have to make fine judgments in the heat of the moment.").

The Court distinguished its holding from Ybarra v. Illinois, 444 U.S. 85, 91 (1979), where the Supreme Court warned that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to a probable cause to search that person." And analogized its holding to Maryland v. Pringle, 540 U.S. 366 (2003) which it contends "allows officers under certain circumstance to find probable cause of a joint illegal enterprise absent particularized suspicion".

The Court admits, however, that Machine Gun Dennison was a gentleman. The lesson may be that you can go to a bar and maintain your privacy (Ybarra), but if you're riding with a bad hombre, you've given up your Fourth Amendment rights.

False Arrest Claim against the City of Albuquerque Dismissed

In Tanberg v. Sholtis, 03-2231 (March 16, 2005), the Tenth Circuit affirmed the mid-trial dismissal of false arrest claims against an Albuquerque police officer. The opinion is notable for its qualified immunity analysis and the relevance, if any, of police department standard operating procedures (SOP's) to the qualified immunity analysis and to fourth amendment and state law claims for false arrest.

Officer Tom Sholtis was on his way home after his shift at about 2:30 a.m. on a fine, early October morning. Tom Sholtis stopped at his local park to check for people because he noticed two cars parked nearby. Sholtis spotlighted the park and ordered the two plaintiffs to his car. The plaintiffs walked away. Sholtis pulled his car around to the area toward where the women were walking. Plaintiff Tanberg walked past Sholtis. Sholtis proceeded to "arm-bar" Ms. Tanberg and placed both plaintiffs under arrest for being in the park after its close and for "contempt of cop" (resisitng, refusal to obey a lawful order).

The Tenth Circuit upheld the trial court's dismissal of both the state law and federal law false arrest claims despite the existence of disputed facts about whether the plaintiffs complied with the orders of Sholtis.

The Court's analysis was simple. The park was closed; it is a misdemeanor to be in the park after its close even if you can't read the sign; thus, the arrest was supported by probable cause to believe plaintiffs were committing a misdemeanor. The Court held that an arrest in violation of department procedures (SOP's) did not support a false arrest claim under state law.

In addition, the Tenth Circuit upheld the trial court's exclusion of department SOP's on plaintiffs' claims of battery and excessive force.
The Court found that in deciding whether to admit department procedures on use of force, the trial court was correct to be concerned about confusing the jury with a standard different than the Graham objective reasonableness test.

In federal district court in New Mexico, the City of Albuquerque is largely successful in excluding SOP's from evidence. However, their attorneys often open the door to its admission when they solicit whether the officer's conduct was in compliance with the officer's training (as happened in this trial). Once training is discussed, SOP's become admissible; as SOP's are part of training.

As a side not, Officer Sholtis is no longer one of Albuquerque's finest. This blogger successfully sued Officer Sholtis twice to judgment. After the Tanberg incident, Officer Sholtis apparently decided that he would try some other line of work. This was a case of a bad cop who got away with one.

Warrantless Search of Toolbox Approved as Administrative Search of Junkyard

In a decision with layers of Fourth Amendment issues, the Tenth Circuit approved the warrantless search of a toolbox at a work station when police were on the premises of a junkyard conducting a search pursuant to a state "chop shop" statute. United States v. Johnson, No. 04-6303 (June 1, 2005). Law enforcement discovered a handgun in the toolbox and charged the defendant with possession of a handgun by a felon. The district court suppressed the evidence, concluding that the search advanced a criminal investigation and was not an administrative search. The Tenth Circuit reversed finding that the motive for the search was unimportant under Whren v. United States, 517 U.S. 806, 813 (1996).

Despite the Court's reliance on Whren, this case does not stand for the proposition that law enforcement may conduct a search in furtherance of a criminal investigation whenever a business is subject to administrative searches pursuant to state law.

The Tenth Circuit cited New York v. Burger, 482 U.S. 691, 707 (1987), for a three-part test in examining whether a warrantless inspection of a closely regulated industry violates the Fourth Amendment:

First, there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made. Second, the warrantless inspections must be necessary to further the regulatory scheme. . . . Finally, the statute's inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant.

In a strange twist, the Tenth Circuit held that a search in furtherance of a criminal investigation is acceptable if the police possess merely a suspicion of criminal activity. The presence of probable cause to believe criminal activity would be found in the search violates the Fourth Amendment as law enforcement would be required to request a search warrant.

The most egregious aspect of this opinion, however, is the fiction that the search of the toolbox was reasonably related to an administrative search. The statute permitted "officers to examine "vehicles," vehicle "parts," and vehicle "parts . . . stored" at the salvage yard." The Tenth CIrcuit, then termed VIN plates as "parts". In searching the toolbox, law enforcement officers were looking for "parts" because they were looking for VIN plates.

When I go to my local NAPA store, I don't see VIN plates for sale. Mr. Johnson got a raw deal and our freedoms took a hit.

New Mexico Court Approves Tribal Police DWI Stop in Gallup

The New Mexico Court of Appeals held that a Navajo Police Officer's DWI stop of a motorist in the Gallup city limits was reasonable under New Mexico law. The Court reasoned that state law did not prohibit the Navajo Police Officer from making a DWI stop off of the Navajo reservation. The Court affirmed the district court's denial of the defendant's motion to suppress. State v. Martinez, 2005-NMCA-052; cert. denied.

McKinley County had cross-commissioned the Navajo Officer. The officer was in an area outside of his regular patrol. He witnessed erratic driving and initiated a stop of the vehicle. Once the tribal officer made the stop and an initial assessment of the driver he called for assistance from a McKinley County deputy, who completed the DWI investigation and arrested the defendant.

The defendant argued that a state statue, which precludes the New Mexico State Police from cross-commissioning tribal officers for law enforcement activities in Gallup, and other select locales, deprived the Navajo officer of any authority in the City of Gallup. NMSA 1978, Sec. 29-1-11(C)(8). The defendant did not argue on appeal that McKinley County lacked the authority to cross-commission tribal officers.

Despite the language in the statute that prohibits the state police from cross-commissioning tribal officers to enforce state laws in Gallup, the Court of Appeals found that the statute did not divest the tribal officer of the authority to stop a vehicle violating traffic laws in the City of Gallup. The Court agreed that the statute did not alter the McKinley County commission to the officer. The obvious question left open is whether McKinley County has the authority to cross-commission officers. The Court seemed troubled by the cross-commission, but held that the defendant had not raised the issue on appeal

Civil Rights Opinion Affirms Privacy in Commercial Property

In Mimics, Inc. v. The Village of Angel Fire, 03-2214 (January 3, 2005), the Tenth Circuit denied qualified immunity to an officer for his intentional, warrantless entry into a commercial property for the alleged purpose of enforcing the state and local building code. The Tenth Circuit also permitted the plaintiffs to proceed with claims for First Amendment retaliation and Fourteenth Amendment Equal Protection, alleging they were "a class of one".

The Mimics' business was computer software. The owners ran the business out of a condominium. The business was not open to the public. Shortly after arriving in Angel Fire, the Mimics' owners became embroiled in a local political dispute. The building inspector was on the other side of the dispute. The building inspector entered twice into the condominium in search of building code violations. The building inspector trumped up violations. The business and its owners sued.

The decision is notable for its recognition that a plaintiff can state a claim for an equal protection violation when he alleges that the government's action was motivated by an animus against the plaintiff as an individual rather than the plaintiff as a member of a protected class. The plaintiff must prove that he was targeted because of some animosity and that others, similarly situated, were treated differently.

The Court also rejected a defense claim that the actions of the building inspection in "just looking around" was a de minimis violation of the Fourth Amendment. The Court distinguished Artes-Roy v. City of Aspen, 31 F.3d 958, 962-63 (10th Cir. 1994)by noting that the entry into the Mimics was intentional and purposeful and not inadvertent.

The Court allowed the plaintiff's First Amendment claim to proceed as well. The Court placed the burden on defendants to show that their conduct was reasonable:

"[P]roof of an official's retaliatory intent rarely will be supported by direct evidence of such intent." Poole v. County of Otero, 271 F.3d 955, 962 (10th Cir. 2001) (quotation omitted). In the context of a summary judgment motion on a qualified immunity defense to a claim involving the defendant's state of mind, the defendant must first show that the challenged conduct was objectively reasonable. Gehl Group v. Koby, 63 F.3d 1528, 1535 (10th Cir. 1995), implicitly overruled on another issue by Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001). Because this court has determined that there is evidence Hasford's entries into MIMICS on December 20, 1996 and January 16, 1997 were not objectively reasonable, we need not conduct any further analysis.(6) Construing the evidence in the Wildgrubes' favor, as we must do on summary judgment, Hasford has failed, at least at this point in the proceedings, to establish that he is entitled to qualified immunity on the Wildgrubes' First Amendment claim.

The case has settled on remand.

New Mexico Civil Rights Lawyers Challenge State Transfers of Cash to Feds

Kennedy & Oliver have joined forces with Albuquerque lawyer Glenn Smith Valdez to challenge the State of New Mexico's practice of bypassing the New Mexico Forfeiture Act in favor of the more profitable federal forfeiture route. The New Mexico State Police have ignored the New Mexico Forfeiture Act since it became effective on July 1, 2002. Kennedy & Oliver and Glenn Smith Valdez represent a man whose now deceased brother's cash the New Mexico State Police seized and transferred to the federal government in direct defiance of state law. Albin v. Bakas, et al., CV 2004-1682 (First Judicial District Court, Santa Fe County)

On October 20, 2002, New Mexico State Police Patrolman C.S. Hooper stopped the plaintiff's brother, John Albin, while he was a passenger in a car in the State of New Mexico. After a prolonged stop and a consent to search the car and personal belongings, Hooper seized $23,000.00 in cash from John Albin and charged John Albin with misdemeanor possession of mushrooms, marijuana and drug paraphernalia.

On December 3, 2002, the New Mexico State Police transfered John Albin's cash to the United States Government thirty-seven (37) days after the seizure. The New Mexico Forfeiture Act provides that seized cash "shall" be deposited in an interest bearing account with the district court clerk. NMSA 31-27-8(A). The Act also provides that "within thirty days of making seizure, the state shall file a complaint for forfeiture or return the property to the person from whom it was seized." NMSA § 31-27-05. Finally, the Act provides that state district courts have jurisdiction over forfeiture proceedings. NMSA§ 31-27-6 (B).

In State v. Nunez, 2000 NMSC 13, 129 NM 63, 2 P.3d 264, the New Mexico Supreme Court decided that the bringing of a criminal action after a forfeiture under the Controlled Substances Act violated the Double Jeopardy Clause of the New Mexico Constitution (Art. II, Sec. 15). The Court decided that civil forfeiture under the Controlled Substances Act constituted punishment.

The Nunez court stated:

Forfeiture inflicts a pecuniary penalty as punishment for the crime and seeks to deter any recurrence of the crime. . . . [E]ven though forfeiture has some remedial aspects, the design and motive behind the forfeiture statutes are unquestionably punitive.

In response to the Nunez decision the state legislature revamped forfeiture proceedings in 2002. 31-27-2 NMSA. The Forfeiture Act has two clearly stated purposes:

"1) to make uniform standards and procedures for
the seizure and forfeiture of property subject to
forfeiture; and (2) to protect the constitutional rights
of persons accused of a crime and of innocent persons
holding interests in property subject to forfeiture."
31-27-2 (A) NMSA.

John Albin was charged with a misdemeanor violation of the New Mexico Controlled Substances Act. The New Mexico Controlled Substances Act provides for the forfeiture of property and cash. NMSA§ 30-31-34. The Act subjects the following to forfeiture:

money which is a fruit or instrumentality of the
NMSA§ 30-31-34 (F).

The Controlled Substances Act, as amended in 2002, also states:

The provisions of the Forfeiture Act [31-27-1 NMSA
1978] apply to the seizure, forfeiture and disposal of
property subject to forfeiture and disposal under the
Controlled Substances Act.
31-31-35 NMSA 1978.

The legal team of Kennedy & Oliver and Valdez is arguing that the Forfeiture Act governs the seizure, handling and final disposition of John Albin's property as New Mexico State Police Officers were enforcing the New Mexico Controlled Substances Act and the officers charged John Albin with a violation of the New Mexico Controlled Substances Act.

The New Mexico Tort Claims Act provides plaintiff with a right to sue law enforcement officers when there is a violation of an explicit constitutional right or a statutory right. California First State Bank v. State, 111 N.M. 64, 801 P.2d 646 (1990); McDermitt v. Corrections Corporation of America, 112 N.M. 247, 814 P.2d 115 (1991). The only requirement is that the statute be written with sufficient particularity as to give rights to specific individuals. Id.

The Forfeiture Act is a statute that gives property owners explicit rights. The statute is designed to "protect the constitutional rights of persons accused of a crime". NMSA 31-27-2 (A)(2). John Albin fit into this category of persons. The statute also gives rights to innocent property owners. Id. Plaintiff falls squarely in the category of innocent property owners. John Albin was charged with a crime under the New Mexico Controlled Substances Act. The Forfeiture Act is designed to protect him and his property.

The Forfeiture Act allows law enforcement officers to seize property in certain limited circumstances. NMSA 31-27-4. The Forfeiture Act gives to a property owner the expectation of a speedy prosecution. NMSA 31-27-5 (filing required within thirty (30) days). The Forfeiture Act gives John Albin the right to a single procedure as required in Nunez and the state bears the burden of proof by "clear and convincing evidence". NMSA 31-27-6. The proceeds of any forfeited funds is designed to go for "drug abuse treatment services, for drug prevention and education programs for other substance abuse demand-reduction initiatives or for enforcing narcotics law violations". The Forfeiture Act guarantees John Albin the right to a "interest bearing account". NMSA 31-27-8.

The New Mexico State Police derive their authority from state law. 29-2-1 NMSA. If the defendants choose to ignore their obligations under the Controlled Substances Act and the Forfeiture Act, they lose the authority to seize the property in the first instance. There is no state law authority for defendants to seize property that is alleged to be contraband under a federal statute. The police chief and "other members" of the New Mexico State Police have limited powers and duties. Their powers are limited to keeping the peace; arresting persons who have violated the law and enforcing laws related to the highway. 29-2-18 NMSA. Their authority to seize property is derived directly from the state forfeiture act. Section 31-27-4 allows the seizure of property in carefully defined circumstances. The common requirement is that the property be "property subject to forfeiture". Under the Forfeiture Act "property subject to forfeiture" is property declared to be subject to forfeiture under state law. NMSA Section 31-27-3(F).

The state has given the defendants no power to enforce civil, federal laws. Since the defendants power is derived from the Controlled Substances Act and the Forfeiture Act, it is incongruous, to say the least, for state officers to seize money under the authority given to them under state law, then to turn around and claim that the state law does not apply.

The Maryland Court of Appeals confronted and disposed of a similar defense by Maryland's State Police when a property owner complained of a federal adoption of a forfeiture. DeSantis v. Maryland, No. 141 (Maryland Court of Appeals 2005) (copy attached). The DeSantis Court framed the State Police defense as follows:

We begin by considering the State's contention that the
State Police had authority to circumvent § 297(e) entirely
when it opted to pursue federal adoption and allow the DEA
to forfeit the money under federal law. The State's primary
argument is that it is not bound by the strictures of § 297
because when the State Police opted for federal adoption
and federal forfeiture, the State statute "never came into
play." We disagree.
The State Police is not free to circumvent State law
altogether when it decides to forgo State forfeiture
proceedings in favor of federal forfeiture proceedings.
When the State Police seized the cash in petitioner's car,
it was operating under State, not federal, law, because the
State trooper seized the property pursuant to the
statutory authority granted him under § 297. Furthermore,
when the State Police took custody of the property, it did
so pursuant to State law, without any federal involvement
whatsoever. At the time of the seizure and during the State
Police's custody of the property, the State Police was
operating under § 297, not 21 U.S.C. § 881. There is no
evidence that federal authorities were involved in, or even
had knowledge of, the seizure of petitioner's property. Thus,
whatever authority the State Police exercised in seizing and
detaining the property emanated from State law, see § 297
(D)(iv), and not from the auspices of federal authority.
Because the property was "taken or detained under [§ 297],"
§ 297(e) is applicable to the State Police. Indeed, almost
all of the cases having considered this issue have assumed
that state authorities cannot avoid their own state laws
when they transfer the property to federal officials.

The Maryland court decided that the Maryland statue allowed the transfer of the money to the federal government. New Mexico's Act requires a filing of a forfeiture complaint wihtin thirty (30) days or the return of the money to its owner. NMSA 31-27-5.

We will be briefing and argue the legalities of the State Police actions in this regard in the near future. We will keep the New Mexico legal community informed of the outcome.


ACLU Challenge to City of Albuquerque Seizure Statute

ACLU attorney, Paul Kennedy (brother of this blogger), argued in state district court that the recently enacted City of Albuquerque car seizure statute violates due process principles. The City of Albuquerque has passed a forfeiture law allowing it to seize and forfeit cars driven by first-time DWI accused offenders. The Albuquerque Tribune reported that the parties agreed to place a "hold" on the enforcement of the ordinance pending further briefing on the legal issues. (story copied below). I have yet to view a copy of the complaint, however, it is likely that older brother Paul plead claims under the New Mexico Constitution only. I will try to give some insight into the litigation as it evolves.

City puts a hold on DWI seizure
By Joline Gutierrez Krueger
Tribune Reporter
May 17, 2005

A new ordinance that allows the city to seize the vehicles of first-time DWI suspects is on hold today as the debate on the law's constitutionality continues.

Attorneys with the American Civil Liberties Union had sought a preliminary injunction against the law, which was to have gone into effect May 11.

But when the ACLU filed its legal challenge that same day, the city agreed not to enforce the ordinance pending a hearing.

Today's ruling by state District Judge Theresa Baca continues that agreement of nonenforcement until both sides in the case have time to file their legal responses to the lawsuit.

Dates of the hearing were not available.

The decision essentially gives the ACLU a temporary injunction without the judge having to render her findings in the case.

ACLU attorneys argue the ordinance assumes guilt before trial.

"Even a superficial examination of the ordinance shouts unconstitutionality," ACLU attorney Paul Kennedy said.

The law applies the city's nuisance abatement ordinance, which allows the city to seize property if it is deemed a nuisance to the public. It imposes the penalty before adjudication, when the driver is cited but before the case goes to trial.

"shouts unconstitutionality"

Ya' gotta love the man's use of the English language.

District Court Dismisses Civil Rights Claim of Unlawful State Removal of Minor Children from Home

A Section 1983 civil rights plaintiff who raises a due process claim for the state's warrantless removal of her children from the home faces huge obstacles of proof and an almost insurmountable legal obstacle in the qualified immunity defense. The State of New Mexico has wide discretion to remove children from their parents' home, without court order, when they assert an emergency. In an opinion from the United States District Court of New Mexico, Magistrate Judge Karen Molzen detailed the law that stands in the way of a successful due process claim. Arrendo v. Locklear, et al., 03cv156 KBM/LCS (May 6, 2005, Docket # 110)(no link is available).

Judge Molzen, in a forty page opinion, dismissed the parents' claim that the Children Youth and Family Division (CYFD) social workers and law enforcement officers deprived them of their Fourteenth Amendment due process rights when they took their eleven month old daughter and their five year old daughter from their home without court order.

The opinion applies Rosca ex rel. Roska v. Peterson, 328 F.3d 1230 (10th CIr. 2003). In Roska, the Tenth Circuit held that the state may not remove chidren from a home without a court order unless there is an "immediate threat" to the safety of the child. The Court stated that the mere possibility of danger was not sufficient for the removal of children.

In Arrendo, the mother had brought the eleven month old into the emergency room twice in one week. One visit was for a broken arm and the other visit was for some type of hip injury(as it turned out, the emergency room doctor misdiagnosed the hip injury as a fracture). Medical personnel contacted CYFD, who in turn contacted law enforcement, and reported suspicions of physical abuse. After some investigation and disagreement about whetheh the children were in danger, CYFD removed the children from the home. Judge Molzen found that all state actors enjoyed qualified immunity for their decision to remove the children without court order.

The two critical legal aspects of the case are Judge Molzen's interpretation of Rosca to the effect that no court order is required for removal, even if time permits, when CYFD reasonably decides an emergency exists and Judge Molzen's decision that the question of whether an emergency existed is a legal question for the court.

Judge Molzen's decision is loaded with case cites from across the country. The opinion contains a wealth of knowledge and is a must read for the lawyer contemplating such a claim.

Is Negligence Enough to Prove a Due Process Violation?

Most civil rights lawyers in New Mexico and elsewhere would answer the question posed with a resounding "No"! They would be correct. However, an intentional, non-malicious act that deprives a property or liberty right can lead to civil liability even when there was no intent to deprive the person of the right at issue. In Simkins v. Bruce, 04-3072, the jail defendants argued that their failure to forward legal mail to a transferred inmate was merely negligent. They argued that their negligent act did not give rise to a constitutional claim as they had no intent to deprive the plaintiff of his right of access to courts. The Tenth Circuit would have none of it and held that the defendant's conscious act of failing to forward legal mail gave rise to an inmate's claim of denial of access to courts when his case was dismissed for his failure to respond to a summary judgment motion mailed to his old jail.

Inmate Simkins was housed in Hutchison, Kansas. While in Hutchison, Inmate Simkins had a pending federal civil suit concerning the conditions of a jail in Saline County, Kansas. In March, 2000, Mr. Simkins was transferred temporarily to Boulder, Colorado for legal proceedings there. In April, 2000 The Saline County Defendants mailed a motion for summary judgment to his address at the Hutchison jail. The mailroom supervisor at the Hutchison jail simply placed Mr. Simkins mail to the side awaiting his return. The problem was that Mr. Simkins did not return to Hutchison until March, 2001. In the interim, his suit against Saline County was dismissed for his failure to respond to the summary judgment motion. This lawsuit followed.

The district court found that the holding of the mail was merely negligent conduct and granted summary judgment to the defendants. The Tenth Circuit disagreed. First, the Tenth Circuit distinguished the Simkins matter from cases in which mail was inadvertently lost or misplaced:

In the present case, plaintiff's claim that a right of access to the courts has been impeded requires him to allege intentional conduct interfering with his legal mail, and does not require an additional showing of malicious motive.(3) See Treff v. Galetka, 74 F.3d 191, 195 (10th Cir. 1996); Jackson v. Procunier, 789 F.2d 307, 311 (5th Cir. 1986); Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986). By contrast, when access to courts is impeded by mere negligence, as when legal mail is inadvertently lost or misdirected, no constitutional violation occurs. See Pink v. Lester, 52 F.3d 73, 77 (4th Cir. 1995) (discussing cases from several circuits). In its Memorandum and Order, the district court relied on cases involving inadvertently lost, not intentionally held mail. See, e.g., Richardson v. McDonnell, 841 F.2d 120, 122 (5th Cir. 1988) (holding that unintentional loss of mail does not support access-to-courts claims and distinguishing situations involving intentional withholding of mail).

The Court found that the mailroom supervisor's intentional failure to forward the mail to Simkins was sufficient to support a claim for denial of right of access to courts. The Tenth Circuit reversed the entry of summary judgment in favor of the jail defendants.

For the lawyer confronting defenses of "mere negligence" in the failure to provide due process, you may wish to read Summers v. State of Utah, 927 F.2d 1165 (10th Cir. 1991) and Soubeer v. Robinson, 791 F.2d 1094 (3rd Cir. 1986). Both stand for the general proposition that the negligent failure to provide due process is actionable when the taking of the property or liberty right was intentional.

Stale Information "Refreshed" by Contemporaneous Suspicious Activities

In United States v. Cantu, No. 04-3291 (May 6, 2005), the Tenth Circuit found probable cause in a search warrant for a vehicle. The probable cause finding was based upon two previous arrests for drug possession, one prior conviction for cocaine possession, unidentified confidential information that the defendant was supplying drugs, and suspicious activity involving a storage facility and a "large duffel bag". The Tenth Circuit rejected the defendant's argument that his previous arrests and conviction were stale and an improper basis for a probable cause determination.

The Hutchison, Kansas Police Department received a "tip" that defendant was dealing drugs and that his supplier was in El Paso, Texas. The Hutchison Police confirmed that defendant traveled to Texas by following him as far south as Stratford, Texas. (Stratford looks to be just miles from the Oklahoma border and about one-third of the way to El Paso from Witchita.). The Tenth Circuit described the Hutchison Police observations preceding the defendant's detention and the application for the search warrant:

On April 14, 2003, Officer Jamie Ty Schoenhoff observed Mr. Cantu operating the same vehicle he had driven to Texas. Around 10:00 p.m., officers followed Mr. Cantu to a storage facility. Officer Schoenhoff testified at the suppression hearing that he did not see Mr. Cantu access a storage shed. Instead, Mr. Cantu exited the vehicle and disappeared into a line of evergreen trees or bushes. Mr. Cantu's wife, Melina Pina, formerly a passenger in the vehicle, then drove the vehicle away from the storage facility. After following the vehicle for a short distance, Officer Schoenhoff returned to the storage facility. There he began surveillance and was soon joined by Detective Howard Shipley. Shortly thereafter, Ms. Pina returned in the vehicle. Officer Schoenhoff next observed Mr. Cantu emerge from the line of evergreens dragging a large black duffel bag on the ground. While neither officer observed Mr. Cantu placing the bag in the vehicle's trunk, Detective Shipley observed the trunk opening and closing. Mr. Cantu then entered the driver's side of the car and proceeded to exit the storage facility.

The above described "surveillance" and a tip that the Tenth Circuit acknowledged as having negligible probative value was sufficient probable cause for a warrant when combined with one prior drug conviction and two prior arrests for drugs. The Tenth Circuit held that the contemporaneous observation of the suspicious activity "harkened back" to the defendant's previous arrests and refreshed what would otherwise appear to be stale information.

The Tenth Circuit also approved the defendant's two hour detention while Hutchison Police secured a search warrant citing Illinois v. McArthur, 531 U.S. 326 (2001)(holding as reasonable a detention outside of residence while police secure a search warrant).

No Qualified Immunity for Reliance on Poor Legal Advice

In Lawrence v. Reed, No.04-8030 (May 6, 2005), the Tenth Circuit denied qualified immunity in a Section 1983 claim for a police chief who towed cars from a property owner after consultation with the city attorney. The plaintiff claimed deprivation of Fourth Amendment rights for the seizure of some ninety vehicles from her "junk yard" under a local "derelict vehicle" ordinance. She also claimed deprivation of her Fourteenth Amendment rights because the ordinance provided no pre-deprivation or post-deprivation hearing. The police chief claimed qualified immunity under the "extraordinary circumstances" doctrine. The Tenth Circuit reversed summary judgment that the district court granted in favor of the police chief.

When the operative law is clearly established, a police officer's reliance upon legal advice will do him little, if any, good. This decision rests upon a number of legal fictions. First, the qualified immunity doctrine itself is a court created doctrine that is contrary to the language and intent of 42 U.S.C. Sec. 1983. Second, the concept that police officers are deemed to know "clearly established" law is a fiction, but it is the only way to limit the judicially created qualified immunity doctrine. Finally, holding a cop liable for the stupidity of a lawyer ultimately makes little sense , but it is an effective method for holding the government accountable for civil rights violations that our Supreme Court wrongly restricted with the qualified immunity doctrine.

On the key issue at hand, "extraordinary circumstances" is claimed when a public official reasonably acts upon the legal advice of an attorney. The Tenth Circuit applied this doctrine in V-1 Oil Co. v. State of Wyo., Dept. of Environmental Quality, 902 F.2d 1482 (10th Cir. 1990). In V-1 Oil, a police officer relied upon a government attorney who told him he needed no warrant for a search of gas tanks of a regulated business based on a state statute. The Tenth Circuit distinguished V-1 Oil from the Ms. Lawrence's claims, because the unconstitutionality of the statute at issue was a "close call". The Tenth Circuit found that the statute at issue in the current case was clearly unconstitutional. Thus, the police chief's reliance upon the city attorney's advice was unreasonable.

The Tenth Circuit's conclusion that the police chief should have known his actions were illegal is remarkably refreshing:

The constitutional inquiry in Mr. Reed's case, by contrast, is markedly simpler. Does the statute deprive an individual of a protected property interest? If so, does the statute provide a hearing? In the context of the Rawlins derelict vehicle ordinance, these are not difficult questions and they yield a clear result. It is therefore not too much to expect Mr. Reed to know that the ordinance was unconstitutional. In spite of the layers of complexity built up around the doctrine of qualified immunity, the fundamental inquiry is fairly simple: should the officer have known that his conduct was unlawful? For the reasons set forth above, we find that Mr. Reed should have known that his conduct was unlawful.

What are we to take from this? Again, if the officer consults with an attorney about whether he needs a search warrant, for instance, the attorney's advice will do the officer no good if the law itself is clearly established. The qualified immunity doctrine imposes upon officers a requirement that they know the clearly established law. Officers cannot avoid their responsibilty to know clearly establiched law by consulting with an attorney.

This opinion also provides a good outline of the due process responsibilities of municipalties when they tow vehicles and provides a good read for that issue alone.

Police Dog Attack Approved on Motionless Offender

In an unpublished opinion, the Tenth Circuit affirmed a jury verdict in favor of an Albuquerque Police K-9 handler who used his dog to remove a motionless man from a car he had broken into. Gutierrez v. Hackett, 04-2104 (May 3, 2005). The plaintiff had filed suit claiming that the use of the dog to rouse him while he was sleeping in the car constituted excessive force under the Fourth Amendment. Despite the fact that the man remained motionless, the Tenth Circuit approved the jury's finding of reasonableness because Mr. Gutierrez hid his hands.

The decision is doubly disappointing for this blogger as he was co-counsel for the plaintiff. Mr. Gutierrez was inebriated and lost on a cold morning. He saw a car that he thought he recognized and decided to sleep in the car. Albuquerque police were called to the scene. After a five minute investigation, the dog handler ordered the dog into the car and ordered the dog to attack. The two most bothersome facts were that the police came in close proximity to Mr. Gutierrez when an officer opened a car door and the dog was ordered to bite rather than to bark when it entered the car. Luckily, Mr. Gutierrez was not severely injured.

The Tenth Circuit simply sided with the jury on this one:

When viewed from the perspective of a reasonable officer on the scene, and in the light most favorable to Officer Hackett, the situation presented a man who had broken into an automobile in the middle of the night, who would not respond to any of the officers' repeated demands to emerge, and who kept his hands hidden in such a manner as to conceal a weapon. As soon as he revealed his hands to the officers, the police dog was called off. The jury determined that under these circumstances, Officer Hackett did not use constitutionally unreasonable force, and we determine that the record contains substantial evidence to support the verdict.

This was the second of two cases Brad Hall (Albuquerque) and I litigated against APD for dog attacks. The first case was successful in vindicating our client's rights and in changing APD policy. Smith v. City of Albuquerque, 01cv416 (United States District Court New Mexico) However, the Gutierrez result was and is a bitter pill.

There are no published Tenth Circuit decisions dealing with the use of police dogs to arrest persons. Perhaps, the decision to issue an unpublished opinion signals that the Tenth Circuit is not quite ready to weigh in on the issue. Thankfully, the opinion establishes no rule of law against plaintiffs. We were hopeful of achieving some rule of law that protected non-violent offenders from dog attacks.

Tenth Circuit Affirms Human Sniff Test

In an opinion involving a review of warrants issued for searches of homes and warrantless searches of vehicles, the Tenth Circuit ruled that a trained officer's purported smell of methamphetamine manufacturing provided probable cause to obtain a warrant to search a residence. United States v. Windrix, 04-5016 (May 3, 2005). The opinion also approved the search of a vehicle despite the warrantless arrest of the driver and his detetnion for four hours while police obtained a warrant.

The defendants, convicted of manufacturing methamphetamine, challenged a number of searches of their homes and the one vehicle search. The most significant legal precedent coming from the opinion appears to be its approval of the officer's sense of smell. The officer claimed to be "certified" by the DEA in the detection of the odor of methamphetamine manufacturing. The warrant was based solely upon his purported sniff. The Tenth Circuit held the sniff was sufficient:

Mook contends that this search was not supported by probable cause, because humans cannot reliably identify odors. But we have repeatedly held in vehicle-search cases that "[a]n officer's detection of the smell of drugs, such as methamphetamine . . . can be an independently sufficient basis for probable cause." United States v. West, 219 F.3d 1171, 1178 (10th Cir. 2000) (collecting cases). We see no reason to limit these cases to vehicle searches: the scent of methamphetamine, wherever detected, gives qualified officers probable cause to search for methamphetamine and evidence of methamphetamine manufacturing.

The Court also approved the search of a defendant's vehicle despite his four hour warrantless detention:

Windrix contends that his four-hour detention at police headquarters was unconstitutional and that the evidence discovered in the search of his car must therefore be suppressed. But we suppress evidence because of an unconstitutional arrest only when the evidence was discovered by exploitation of the arrest. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).
Windrix rightly concedes that "the arresting officers had probable cause to search [his] vehicle right . . . after the dog alert." Windrix's Aplt. Br. at 19. It was the dog alert, not the arrest or anything Windrix said or did during the arrest, that justified the search. The evidence was not discovered by exploitation of the arrest. Consequently, it was proper not to suppress the evidence, regardless of the constitutionality of the arrest. See United States v. Shareef, 100 F.3d 1491, 1508 (10th Cir. 1996) (seizure of vehicle was not fruit of unlawful detention of occupants); United States v. Eylicio-Montoya, 70 F.3d 1158, 1166-67 (10th Cir. 1995) (burlap bags containing marijuana would not have been any less visible had car's occupants not been unlawfully arrested).

The significant problem with allowing officers to obtain search warrants based on their sense of smell is the naturally subjective nature of the sense of smell and the probability of its manipulation. Since the manufacture of methamphetamine involves a number of chemicals, the sniff test subjects many people to searches when their use of the chemicals is innocent and consistent with the law.

Update - Albuquerque Police Illegal Cash Seizures

In Gonzales v. City of Albuquerque, 03cv1150, Kennedy & Oliver represents a young man whose cash (4,378) an Albuquerque police detective seized from his home and held illegally for seven months. Kennedy & Oliver filed a civil rights suit for return of the money, interest and attorney fees when the City of Albuquerque failed to return Mr. Gonzales' money. On February 16, 2005, Kennedy & Oliver was able to depose the APD detective (Burge) about the City of Albuquerque's seizure of cash. Detective Burge's testimony reveals an agency whose officers are ignorant of the law and indifferent to the instructions of their own supervisor to stop seizures and forfeitures of cash.

As posted previously, New Mexico radically altered its forfeiture laws in July of 2002. (New Mexico law on cash forfitures). The forfeiture law changes made the forfeiture of cash more difficult for law enforcement. In fact, a supervisor at APD issued a memorandum instructing his subordinates to stop seizing cash.

Apparently, APD detectives have ignored their supervisor's directive for over three years:




vs. CIV 03-1150 BB/WDS

City of Albuquerque Police Officers,



Wednesday, February 16, 2005
9:00 a.m.
500 Fourth Street, Northwest
Suite 105
Albuquerque, New Mexico 87102

PROCEDURE, this deposition was:


500 Fourth Street, Northwest
Suite 105
Albuquerque, New Mexico 87102

Q. All right. Now, did you ever become aware

of a change in forfeiture law in July of 2002 in the

State of New Mexico?

A. Yes.

Q. How did you become aware of that?

A. The deputy chief put out a memo about the

double jeopardy law.

Q. What chief? I'm sorry.

A. Ruben Davalos, the deputy chief.

Q. He actually wrote a written memorandum

about the double jeopardy law?

A. Yes, and about we were no longer allowed to

(505) 843-9241

do the seizures based on that.

Q. Did the memorandum contain anything as far

as working with the DEA on seizures, that you know of?

A. No. No.

Q. Okay. So your recollection is, the

memorandum said that we--and when you say "we," do you

mean the City of Albuquerque or the detectives?

A. The police department.

Q. The police department.

A. Well, specifically SID, because he was our

deputy chief.

Q. Okay. That SID could no longer do


A. Forfeitures based on the double jeopardy.

Q. Okay. Forfeitures of cash related to drug


A. Yes.

Q. All right. Was there anything written as

to what you would do with cash? Say you execute a

warrant where you find drugs, clearly a sales

situation going on, and you find cash. Is there any

written--anything written in Ruben Davalos' thing as

to what to do with that cash?

A. No.

Detective Burge, in referring to "the double jeopardy law" is referencing the Nunez decision, 2000 NMSC 13, which held that forfeiture of cash and criminal prosecution in separate proceedings violated the double jeopardy clause of the New Mexico Constitution. The 2002 state statute was written, in large part, to codify Nunez. Thus, we can infer that Deputy Chief Davalos' referenced memorandum was written shortly after Nunez was decided.

Detective Burge and other detectives continued to seize cash despite the Davalos directive:

Q. DEA. Okay. And since, say, 2002 have

you--other than Elias Gonzales, have you had the

occasion to seize cash from any other suspects or

criminal defendants?

A. Yes.

Q. And can you estimate about how many times?

A. Since Elias?

Q. Yes, let's do that.

A. I don't know.

Q. Okay. Do you have a standard procedure as

to what you do with the cash you seize?

A. Yes.

Q. What do you do?

A. We count it and then it gets tagged into

our evidence unit.

Q. Okay. And what happens to it there?

A. It goes to evidence.

Q. That's it?

A. That's all I know.

Detective Burge and other detectives failed to complete forfeiture paperwork on cash seized:

Q. Okay. But, again, there's no--that you're

aware of, there's no written policies or procedures as

to how you should handle that money at this point in


A. Like what?

Q. Like, you know, officers should put the

money into evidence within ten days.

A. Do the seizure paperwork like through the

city or give it to a federal agency within that ten

days. There was some-- It was when that double

jeopardy stuff was coming through, we were told not to

do it. I tried finding that memo--I can't find

it--that Ruben Davalos wrote. There's some confusion

(505) 843-9241


over that. So, I mean, there was a bunch of things

going on. The state statute was-- I mean, I even

talked to some of the narcotic guys about it and, you

know, they say they are confused about it.

Q. Okay. So prior to Ruben Davalos's

memorandum, there was some sort of paperwork within

ten days that you had to file and send to-- And I

forget who you told me.

A. You do your--you do your report, and then

there's a cover sheet where you put your case number--

Q. Right.

A. --a bunch of other useless information, and

then you put like a vehicle, money, whatever it is

that you seized, and then we had other officers--or

there were civilians, actually, who did the seizure

stuff, whether it be a vehicle, money, or whatever.

Q. Okay.

A. Then you just put it in their box and then

they take it, and I don't know what happens after


Q. Okay. But that procedure was suspended

with the Ruben Davalos memorandum?

A. And then that double jeopardy case that

came down.

Q. Right.

(505) 843-9241


A. And I think all of APD was confused over

all of that.

Q. Okay. So the procedure that you just

described about filling out the paperwork, you didn't

do it in the Elias Gonzales situation?

A. No.

Q. All right. Because it had been suspended

or ended: is that fair?

A. Yes.

Q. And is it fair to say, there's no clear

communication as to what was going to take its place

or how to proceed from there?

A. That's fair, yes.

Confusing to some, I suppose. An APD supervisor wrote a memorandum that there are to be no more forfeitures. APD detectives ignored their supervisor, continued to seize cash and continued to tag cash into evidence. Seems clear to me - the money was piling up in evidence.

Again, the real evil underlying the missing cash fiasco is APD detectives' decision to ignore state law. APD detectives decided to ignore state law and the directive of their supervisor. The Attorney General's office has failed to hold anyone accountable. Hopefully, we will be able to insure that APD follows the law in the future through the Gonzales and Gutierrez litigation.


What is a Seizure?

The Fourth Amendment protects persons and property from unreasonable seizures. Payton v. New York, 445 U.S. 573, 585 (1980). In its civil rights practice, Kennedy & Oliver represents people who are wrongfully detained, wrongfully arrested, suffer excessive force, suffer sexual assault and suffer the loss or destruction of property at the hands of government officials. The United States Constitution protects our bodies from loss of liberty and injury and our property from damage and destruction when illegal government action causes the injury or loss. The legal source for the constituional protection from personal injury and property damage comes mainly from the prohibition of unreasonable seizures as stated in the Fourth Amenmdment to the United States Constitution.

A person is seized when a reasonable person in like circumstances would not feel free to leave. United States v. Mendenhall, 446 U.S. 554-55 (1980). Generally, an officer must use his authority to detain a citizen physically or order a person to remain before a court will decide that law enforcement has seized a person. Terry v. Ohio, 392 U.S. 1, 16, 19 n.6 (1968). Retention of personal documents, usually means the police are "seizing" the person. Florida v. Royer, 460 U.S. 491, 501-02 (1983).

A seizure must be intentional. Brower v. County of Inyo, 489 U.S. 593 (1989). In other words, the police officer must intend to terminate a person's freedom of movement. Id. (finding that use of roadblock was an intentional seizure of person).

Police use of force constitutes a seizure under the Fourth Amendment. Graham v. Connor, 490 U.S. 386 (1989). "All claims that law enforcement officers have used excessive force - deadly or not - in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard." Vathekan v. Prince George's County, 154 F.3d 173, 178 (4th Cir. 1998), citing Graham v. Connor, 490 U.S. 386, 395 (1989). "This includes attacks by police dogs improperly deployed by their handlers." Id., citing, Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991). "An attack by an unreasonably deployed police dog in the course of a seizure is a Fourth Amendment excessive force violation." Id.

A property seizure is a "meaningful interference" with an individual's property. Soldal v. Cook County, Ill., 506 U.S. 56 (1992)(unlawful taking of a mobile home). A government seizure of property, even if no search takes place, is scrutinized under the Fourth Amendment. United States v. Paige, 136 F.3d 1012, 1017 (5th CIr. 1998). Destruction of property is a "seizure". Bonds v. Cox, 20 F.3d 697 (6th Cir. 1994). Taking animals from a person's property is a seizure and may only be done, absent exigent circumstances, pursuant to a warrant. Di Cesare v. Stuart, 12 F.3d 973 (10th Cir. 1993).

In future tutorials, we will review such issues as when a detetnion becomes an arrest, what constitutes reasonable use of force and when a warrant is necessary to arrest and seize property.


New Mexico Supreme Court to Review Protective Sweep Opinion

The New Mexico Supreme Court has granted certiorari in State v. Zamora, 2005 NMCA 39 (February 11, 2005); cert. granted No. 29,1117. In Zamora, the New Mexico Court of Appeals suppressed cocaine found in a partially opened medicine cabinet when Albuquerque police were conducting a protective sweep of a motel room. The Court of Appeals ordered the matter remanded for a new trial.

The Zamora decision involved a question of whether the defendant had standing to challenge the search as a guest in the motel room rented by his mother and whether the officer properly seized the cocaine from the cabinet when he saw simply a plastic baggie.

The district court and the court of appeals found that the officers were properly in the motel room pursuant to the consent of the defendant. The officers made an arrest of defendant based upon cocaine seen on a table in the room and defendant's identification of the substance as cocaine. Once the officers handcuffed the defendant, one officer conducted a protective sweep of the motel room to determine if anyone else was present.

The officer saw a plastic baggie in a partially opened medicine cabinet. The officer opened the medicine cabinet further and seized the baggie, which contained cocaine. The Court of Appeals rejected the state's argument that the baggie was legally seized pursuant to the plain view doctrine.

The certiorari seems unusual. The Zamora opinion reads as a dry, common sense application of court precedent to an overbroad warrantless search. Stay tuned.

Judicial Estoppel Bars Section 1983 Suit for Wrongful Arrest

In Johnson v. Lindon City Corp., No. 04-4067 (April 25, 2005), the Tenth Circuit affirmed the dismissal of a civil rights complaint due to the plaintiffs' previous factual admission of guilt in the criminal proceeding. The Tenth Circuit determined that judicial estoppel barred the plaintiffs from taking a position in the civil litigation that was contrary to their acceptance of "Pleas in Abeyance" in the Utah criminal proceedings.

A "Plea in Abeyance" allows a criminal defendant to escape a conviction, if he admits guilt and completes a period of probation. In New Mexico, we have deferred sentences, conditional discharges and pre-prosecution probation. All have the advantage of allowing a criminal defendant to escape a legal conviction. However, all require that a defendant factually acknowledge some guilt. The import of the Johnson decision for New Mexico civil rights lawyers is that a client will be bound to his factual agreement of guilt or responsibility even if the criminal charges result, eventually, in a dismissal of the charges.

Heck v. Humphries, 512 U.S. 477 (1994), stands for the broad proposition that an adjudication of guilt will bar a civil rights claim for wrongful arrest when a plaintiff sues upon the same set of facts. In applying the doctrine of judicial estoppel, the Tenth Circuit has excluded an additional class of potential plaintiffs from filing civil rights suits. The Court described the doctrine as follows:

"[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him." Davis v. Wakelee, 156 U.S. 680, 689 (1895). Although noting that this rule, known as judicial estoppel, is "'probably not reducible to any general formulation of principle,'" New Hampshire, 532 U.S. at 750 (citation omitted), the Court noted several factors which other courts have typically used to determine when to apply judicial estoppel. "First, a party's later position must be 'clearly inconsistent' with its earlier position." Id. (citation omitted). Moreover, the position to be estopped must generally be one of fact rather than of law or legal theory. Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir. 1996). Second, "whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create 'the perception that either the first or the second court was misled.'" New Hampshire, 532 U.S. at 750 (citation omitted). The requirement that a previous court has accepted the prior inconsistent factual position "ensures that judicial estoppel is applied in the narrowest of circumstances." Lowery, 92 F.3d at 224. Third, "whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." New Hampshire, 532 U.S. at 751.

The lesson for civil rights plaintiffs is to consult with a civil rights attorney as soon as possible. Kennedy & Oliver does both criminal defense and civil rights. Your freedom is of paramount importance. Thus, your interest in achieving success in the criminal matter is always our primary concern. However, as a general rule, if we cannot be confident of an acquital in a criminal matter, we must acknowledge that there are probably difficulties with any civil rights case. If we are confident of success, we will pursue your criminal defense through trial. An acquital is the surest method of preserving your rights.

Tenth Circuit Rules Pat-Down Frisk Violated Fourth Amendment

In a case that will bring a tear to the eye of the most cynical civil libertarian, the Tenth Circuit came down on the side of justice and freedom when it held that a Denver Police Officer deprived Luis Espinosa-Organista of his Fourth Amendment right to be free of unreasonable searches when the officer "frisked" Mr. Espinosa-Organista during the execution of a search warrant at the Denver Justice and Peace Committee (DJPC). Denver Justice Peace Committee v. City of Golden, 03-1470 (April 26, 2005). Judge Holloway, writing for the unnanimous three judge panel, held simply that "Espinosa had sufficiently alleged that he was frisked without reasonable suspicion that he was involved in any criminal activity or that he possessed a weapon."

The DJPC shares office space with "the Quaker run American Friends Service Committee (AFSC)". The Golden Police Department sought and received a search warrant to search the offices of the two organizations pursuant to a vandalism investigation. The facts of the case are worth reading to enlighten us of the precarious position of our First Amendment rights. The litigation presents important First Amendment issues, as the search warrant sought, among other items, membership lists.

Mr. Espinosa's claim came before the Tenth Circuit upon an officer's appeal of his motion to dismiss Mr. Espinosa's claim that the pat-down frisk was unreasonable. Mr. Espinosa was the office administrator for DJPC and his wife worked for AFSC. Mr. Espinosa arrived at the shared office after the execution of the search warrant had begun. When he arrived, a police officer asked for his identification, which he provided, and proceeded to pat-down Mr. Espinosa. The police conducted a frisk of Mr. Espinosa only. Mr. Espinosa brought suit for nominal damges and attorney fees.

In deciding that the frisk deprived Mr. Espinosa of his Fourth Amendment rights, the Tenth Circuit focused on the "nature of the search warrant being executed." The police were searching for items subject to First Amendment protection and Mr. Espinosa was not implicated in the alleged act of vandalism. The Tenth Circuit rejected an argument that officers should be allowed to frisk anyone present at the execution of a search warrant.

Kennedy & Oliver will no doubt be citing the Espinosa decision for years to come. We are preparing a suit on behalf of an African American male in Clovis who was searched in a restaurant, while eating with his son. A Clovis police officer claimed to smell marijuana on him. The Espinosa case gives us a legal precedent and a "give a darn" precedent, which sometimes is more important for our judiciary. We congratulate Mr. Espinosa and his attorneys - Mark Silverstein and Lino S. Lipinsky of Denver.

New Mexico Attorney General Determines Seized Money is Missing

In a report released to the City of Albuquerque Police Department and to the media and public, the New Mexico Attorney General states that her office is unable to locate over $58,000 APD officers have seized from 2002 to 2004. While the report indicated that the City of Albuquerque suspected employees of the evidence room of theft, the Attorney General declined to prosecute citing concerns about APD's supervision and record keeping. The attorney general's report is an important first step. However, the report fails to address the unlawfulness of the APD seizures of cash in the first instance.

Assistant Attorney General Michael Cox wrote the following memorandum for public release:

Memorandum from Michael Cox, director of the Attorney General's Office's Special Prosecutions Division, to Attorney General Patricia Madrid regarding the Evidence Room of the Albuquerque Police Department.

Overview: The investigation of currency and jewelry missing from APD Evidence was referred to us on March 4, 2004, by then Chief of Police Gil Gallegos. An initial investigation by APD's own investigators indicated money and jewelry, which had been seized as evidence by APD and stored in the Evidence Room, were missing.

I should note at the outset that the larger issues of lost or compromised evidence, so prominently featured in the press lately, were not within our mandate and were irrelevant to our criminal investigation. Our sole objective was to determine if criminal activity had occurred and if sufficient evidence could be developed to support prosecutable cases against any individuals. We did not investigate the integrity of evidence, aside from money, which was the focus of the investigation. Issues of mismanagement were also not investigated except to the limited extent that they hampered or handicapped our investigation. Contrary to media accounts, the Attorney General's Office was not requested to undertake, and did not conduct, a comprehensive audit of evidence in connection with this investigation. As far as we can tell, a comprehensive cataloging of the thousands of items in evidence has never been conducted.

Initially, APD referred to our office 76 cases in which currency, jewelry, guns or drugs were believed to be missing. While our review of these cases revealed numerous discrepancies regarding currency, all other evidence was accounted for. The investigation was then focused on currency and expanded to cover currency reports from January 1, 2001 through March of 2004, and APD provided 2,526 police reports involving currency spanning this time period. Additionally, APD provided copies and originals of the money log, money deposits, bank records, as well as access to the Evidence Room. An exhaustive and thorough investigation was conducted: one special agent of the Attorney General and three APD Detectives worked full-time for months: sixty-five (65) subpoenas were served on various individuals, sixty-one (61) interviews were conducted, and tens of thousands of documents were examined.

Money handling procedures: The investigation established that certain procedures were mandated for the handling of seized currency, and also indicated that these procedures were inadequate and not always followed. A detailed explanation of the system, and its flaws is essential to understanding the numerous problems encountered in prosecuting the case.

After money was seized, the officer who seized it filled out an evidence tag, at either a substation or at the Evidence Room. The evidence tag was affixed to the bag containing the money. Money above a certain amount was to be verified and countersigned by a supervisor. The officer recorded the evidence in an Evidence Log kept at the substation and also indicated the amount seized in the property section of his police report. When evidence was picked up at a substation by evidence room technicians, the technician initialed the Evidence Log to show that they had taken possession. For currency over a set amount, the technicians were required to obtain verification and countersignature by an evidence room supervisor.

When evidence was taken to the Evidence Room, an evidence card (originally paper, later electronic) was created by Evidence Room personnel. When currency was placed in the Evidence Room vault, it was logged into the money log, which showed when money was placed in or removed from the vault, and by whom. Evidence Room technicians created a deposit log when the money was readied for deposit, which included money seized in a number of cases, referred to as a bulk deposit. An Evidence Room supervisor was required to verify the deposit log and deposit prior to the currency being deposited in the bank by an Evidence Room technician.

Incomplete/inadequate documentation: Inadequacies built into the system combined with a failure to follow the established procedures severely hampered the investigation. Amounts recorded on APD reports did not always coincide with amounts entered on evidence tags and evidence logs, and incorrect entry of case numbers on reports, evidence tags, and logs allowed for misplacement of currency. The data entry procedure, which initially required records personnel to enter all records of evidence taken, was changed at some point before the end of 2002 so that responsibility for this function was transferred to the evidence personnel, and this eliminated an important existing double check in the system.

APD's failure to use simple accounting practices created serious gaps in evidence. A review of the available documents suggests that some $58,000 was missing during 2002 and 2003. However, the primary methods of tracking money, database searches of police reports, according to interviews conducted, did not guarantee that all reports were found. During our investigation, APD was uncertain that all relevant reports of money seized were found. Consequently, an exact count of missing money could not be determined. The investigation did not find evidence of any reconciliation between the money seized, the cash deposited, nor the person making deposits. In addition, supervisor verification of amounts proved to be either absent, or pro forma and unreliable. No record was kept of the identity of the individual actually depositing the money into the bank. No internal or external full physical inventory or audits of the Evidence Room were ever conducted nor were any financial audits or reconciliations of money within the evidence room conducted.

Adoption of a new computerized information system, which could have more accurately tracked money had the opposite effect: lockout problems in the new system were remedied by employees sharing each other's passwords; making it impossible to determine who created or modified information within the evidence database.

Inadequate supervision: Lack of supervision of the currency-handling employees allowed practices and procedures, which handicapped the investigation. Supervisory personnel had no experience in inventory management or banking practices: their subordinates trained them. The supervisor's verification of currency amounts was inconsistent, and in some cases there was no verification. Technicians were allowed to remove currency from the vault and evidence room without verification of amounts by a supervisor.

All evidence personnel had unfettered access to the currency vault. No record of persons entering or leaving the currency vault was maintained. The only written record of money entering or leaving the vault, the money log, was readily available to all employees - which facilitated tampering with the log - and eventually theft of critical logs. No regular deposit schedule was established: some deposits were not made until months after being logged into the Evidence Room and in some cases deposits were not made for a year. Employees were permitted to list deposits as one lump sum on deposit slips rather than reflecting specific amounts brought into evidence.

Failure to secure evidence: As early as August 2003, employees of the Evidence Room were suspected of misappropriating evidence, yet no efforts were made to secure the evidence documentation, and the suspected individuals were allowed to remain in the Evidence Room until the end of 2003.

As a result, there was ample time and opportunity for anyone in the Evidence Room to alter or steal critical records. The most essential documents, the vault money logs, are missing for critical periods in both 2002 and 2003. In October 2003, persons unknown altered numerous computer records reflecting the arrival of money in the Evidence Room, using a variety of passwords, making it impossible to determine who was responsible for the alterations. Deposit logs are missing, and in some cases, recreated, with supervisor approval. Some substation evidence logs are also missing. No monthly reconciliation of deposits was done to obtain an accurate balance.

Conclusions: As you directed, I analyzed this case for prosecutorial merit without regard for political or media issues which surround it. I also applied your usual standard to charge a case: a reasonable probability of successful prosecution at trial. It is my professional opinion that the case should not be prosecuted. I base this on a combination of factors which render the case in my judgment far too problematic to be deemed reasonably winnable: including woefully inadequate money tracking procedures, failure to follow even these minimal procedures and lost or altered evidence.

Despite being the most intensive and extensive investigation conducted by this office in the last six years, no documentary or eyewitness evidence has been found which points unerringly at any particular Evidence Room employee, including the suspects initially identified by APD.

Investigation has indicated that certain individuals were suspected of being responsible for the thefts, but it has not yielded sufficient concrete evidence to justify a criminal prosecution. We simply cannot eliminate the possibility that any given theft was committed by other Evidence Room employees: at least seven current and two former APD evidence employees had unrestricted access to the unaccounted for funds. All of our efforts to conclusively prove responsibility for the thefts by establishing a compelling pattern of theft similarly failed due to our inability to prove when or how any specific sum of money was embezzled.

While it might be possible to secure indictments in this case, we cannot prove at trial that any identified individual embezzled any specific sum of money during a specified time period, all of which are required for conviction under New Mexico law. Therefore, I recommend that the case be closed without any criminal charges being filed. I have asked two of the most experienced prosecutors in the Division, both of whom have extensive economic crime prosecution experience, to review the case and make their own independent recommendation: both agree with my analysis and my conclusion.

Attorney Cox and the Attorney General ignore that APD made the cash available for theft, because of its officers' unlawful seizures. As stated in this blog on April 25, 2005 (report of Gutierrez litigation), APD detectives repeatedly have violated state law in the seizure of cash from citizens. There was no legal accountability for the cash from the moment APD detectives seized the cash, because the state did not authorize its seizure and APD had no process in place to return the seized cash.

It is worthy to note that the New Mexico Department of Public Safety continues to seize cash for adopted forfeiture to the United States. Kennedy & Oliver is challenging the state police practice of seizing cash in contravention of state law as well in Albin v. Bakas, et al., CV 2004-1682 (First Judicial District Court (Santa Fe)).

Kennedy & Oliver will continue to aggressively pursue the Gutierrez litigation to insure that citizens are fully compensated and to put an end to APD unlawfulness in the seizure of cash.


City of Albuquerque Sued for Cash Seizures

On April 7, 2005, Kennedy & Oliver filed suit on behalf of Gabriel Gutierrez, and a class of similarly situated plaintiffs, to redress the City of Albuquerque's illegal seizure of cash from citizens and to demand an accounting of all cash seizures from July 1, 2002 to the present. On July 14, 2003, City of Albuquerque detectives seized $5,760 from Mr. Gutierrez' home. On March 25, 2005, The City of Albuquerque, upon order of the court, issued a check to Mr. Gutirrez in the amount of $5,760. Mr. Gutierrez' action, filed in the Second Judicial District Court (CV 2005-2801), seeks interest on his wrongfully converted money and return of all principal and interest on all other cash seizures.

In July 2002, the State of New Mexico drastically changed it forfeiture laws. Seizures of property are only allowed pursuant to a court order, incident to an arrest or when a law enforcement officer "has probable cause to believe the property is property subject to a forfeiture and that the delay occasioned by the need to obtain a court order would frustrate the seizure". NMSA 31-27-4. Thus, the only basis for the seizure of cash is that there is probable cause to believe it is subject to forfeiture and a court order would frustrate the seizure.

In New Mexico cash may be forfeited only when the district court finds by clear and convincing evidence that a criminal prosecution has resulted in a conviction. NMSA § 31-27-6 (E).

Under state law, seized money must be deposited with the district court clerk. NMSA § 31-27-8 (A):

Seized currency alleged to be subject to forfeiture shall be deposited with the clerk of the district court in an interest-bearing account.

The state must file a forfeiture action within thirty (30) days or return the cash. NMSA § 31-27-5 (A):

Within thirty days of making seizure, the state shall file a
complaint of forfeiture or return the property to the person from whom it was seized.

The City of Albuquerque continued to seize money that its officers suspected to be related to drug sales. However, the City of Albuquerque has filed no forfeiture actions since the 2002 changes to New Mexico's forfeiture law. Mr. Gutierrez' litigation is designed to discover what is happening to the seized money and it seeks a return along with payment of interest for all persons whose cash was seized. From a review of filed Returns and Inventories for search warrants in 2003, Kennedy & Oliver has compiled a partial list of money seized from subjects of search warrants. The money seized for 2003 totals over $50,000.

Kennedy & Oliver is seeking discovery that would show what the City has done with the money seized. Discovery responses are due May 23, 2005. Kennedy & Oliver intends to seek entry of summary judgment and class certification by early June, 2005.

We are actively seeking potential clients with claims against the City of Albuquerque for its unlawful seizure and retention of money and other property.

In addition, the State Police and other agencies are seeking federal adoption of cash seizures over $5,000. Kennedy & Oliver is also actively involved in litigation to challenge the transfer of state seizures to the federal courts.


Computer Search - Good Faith Exception Applied

In United States v. Riccardi, No. 03-3132 (April 19, 2005), the Tenth Circuit held that the good faith exception applied to a warrant for a computer search. The warrant lacked sufficient particularity in that it authorized the seizure of a computer and a search of its complete hard drive. However, an individual officer's consultation with a district attorney about whether he needed a more specific warrant and a limited search of the computer files convinced the Tenth Circuit that the evidence discovered was properly admitted at trial.

Mr. Riccardi was convicted of possession of child pornography. One count involved images retrieved from his computer's hard drive. A warrant was executed at Mr. Riccardi's residence for information related to lurid phone calls he had made to teenage boys. While at his home, police located a computer. Based on other material found in the execution of the search warrant, the Tenth Circuit decided that there was sufficient evidence to obtain a warrant for the seizure of the computer.

The warrant authorized the seizure of the computer and the search of "all electronic and magnetic media stored within such devices". The warrant did not specify the items for which the officers were authorized to search. The Tenth Circuit cited United States v. Carey, 172 F.3d 1268, 1271 (10th Cir. 1999), in holding that the warrant lacked the Fourth Amendment's required particularity:

The underlying premise in Carey is that officers conducting searches (and the magistrates issuing warrants for those searches) cannot simply conduct a sweeping, comprehensive search of a computer's hard drive. Because computers can hold so much information touching on many different areas of a person's life, there is a greater potential for the "intermingling" of documents and a consequent invasion of privacy when police execute a search for evidence on a computer. . . . Thus, when officers come across computer files intermingled with irrelevant computer files, they may seal or hold the computer pending approval by a magistrate of the conditions and limitations on a further search of the computer. . . . Officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant.

However, "good faith" saved the day for law enforcement. The investigating agent opened the computer and found "thumbnail files of child pornography". The agent suspended the search and asked whether a more specific warrant would be required. A prosecuter told him no and the agent proceeded. The Court noted also that the affidavit for search warrant was specific, the search methodology limited the search to finding child pornography, and the agents seized only child pornography.

The Court distinguished its holding from United States v. Leary, 846 F.2d 592 (10th CIr. 1988), in which a broader search was conducted. The determining fact in Riccardi appears to be the labeling of the files in the computer. If the agents had conducted a search for child pornography through the complete hard drive the Leary would likely dictate the suppression of the evidence. As it was, the files were marked and the agents merely extracted the marked files. Ironically, it was the marking of the files that prompted the agent to ask for advice.

Reasonable Suspicion to Detain a Motorist

In United States v. Williams, 04-7065 (April 18, 2005), the Tenth Circuit confirmed what criminal defense practitioners already know - the reasonable suspicion standard for highway detentions is low - really low. Extreme nervousness, conflicting stories about travel plans, the defendant's admitted exit from the highway to avoid the traffic stop and a "mad dash"(my description completely) to his car after the return of his documents combined to provide reasonable suspicion to detain for a dog sniff. The dog was riding with the state trooper. Once the dog provided a positive alert, probable cause existed to search.

In a very short, published opinion the Court ran through the analytical standards and summed up its holding:

The district court relied on the following factual findings to support its conclusion that the detention was justified by reasonable suspicion. Mr. Williams was extremely nervous during his encounter with Trooper Hyde; his hands were shaking, his voice was cracking, he could not sit still, and his heart was beating so fast that Trooper Hyde was able to see his chest jerk. Mr. Williams admitted that he exited the interstate to avoid the traffic stop. Mr. Williams and his passengers gave inconsistent stories when asked where they were coming from and how long they had been together. When Mr. Williams exited the patrol car, Mr. Williams appeared as if he were about to run. Considered in the light most favorable to the district court's ruling, these findings of fact are not clearly erroneous.

There appears to be little remarkable about the Williams decision. One has to wonder why the Court chose to publish the opinion - unless the judges just wanted to pound into our heads that reasonable suspicion is a low standard for a prolonged detention on the highways of America.

New Mexico's Emergency Assistance Doctrine

New Mexico criminal defense lawyers and district attorneys will need to study State v. Ryon, 2005 NMSC 005 (2005), to learn the contours and discover the hidden gems in the recently announced New Mexico emergency assistance doctrine. In Ryon, the New Mexico Supreme Court announced the emergency assistance exception to the warrant requirment and distinguished it from the community caretaker exception. The Ryon Court, at once, expanded and limited the holdings in State v. Nemeth, 2001 NMCA 029, 130 N.M. 261, 23 P.3d 936 (extending community caretaker exception to warrantless home entries)

The Ryon Court established a three part test to determine whether the emergency assistance doctrine applies:

1) An objective, life-thretening emergency in a residence:

The objective standard for a warrantless and non-consensual entry into a home, however, requires a higher degree of urgency than the Nemeth decision may have conveyed. The emergency assistance doctrine applies specifically to warrantless intrusions into the home. The emergency assistance doctrine requires an emergency, a strong perception that action is required to protect against imminent danger to life or limb, an emergency that is sufficiently compelling to make a warrantless entry into the home objectively reasonable under the Fourth Amendment.

2) A subjective motivation to preserve life:

The emergency assistance doctrine is not applicable, however, unless the entry is motivated by the perceived need to act immediately in order to save a life.

3) A nexus between the place searched and the emergency.

The Ryon Court made clear that the doctrine is not limited to cases in which the community caretaker function is exercised in the non-criminal setting. In other words, the exception may apply in any criminal investigation. But, as previously stated, the Ryon appears to reject the Nemeth opinion for its lower emergency level allowing an intrusion into the home.

Sexual Assault in County Jail - Supervisory Liability Analysis

In Gonzales v. Martinez, et al., No. 03-1348 (April 14, 2005), the Tenth Circuit clarified the evidence a plaintiff may use succesfully to prove a jail administrator's liability for a guard's sexual assault of a female inmate. The Tenth Circuit reversed a district court's entry of summary judgment in favor of a county sheriff after two women were sexually assaulted in the county jail. The Court held that a jury could find, based on the evidence presented, that the sheriff ignored a "substantial risk of serious harm".

While the case involves an Eighth Amendment claim, the holding has broad application in Section 1983 for supervisory claims and municipal claims. (Claims of prison assault analyzed under Eighth and Fourteenth Amendments. Farmer v. Brennan, 511 U.S. 825, 847 (1994); Lopez v. LeMaster, 172 F.3d 756, 761 (10th Cir. 1999); Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993)).

The factual details of the evidence considered and the Court's handling of the evidence are difficult to summarize. The case is an obvious must read for the practitioner with a similar claim. However, there are aspects of the opinion worth noting:

1) The Court inferred that post-incident misconduct may be used to show a supervisory defendant's mental state or policy.

To meet the Farmer test . . . Ms. Gonzales presented a series of incidents both preceding and following her assault to establish a genuine issue of material fact that the sheriff [possessed facts from which an inference can be drawn that the sheriff was aware of a "substantial risk of serious harm"].

2) The Court considered evidence of how the sheriff handled the investigation of the sexual assaults at issue.

Finally, and most astonishing, when first advised . . . he not only left the prisoners unprotected in the jail, but also in the custody and control of the very men accused of the assaults.

3) The Court considered acts of guard-on-inmate violence other than sexual assaults, other guard misconduct and the failure to provide security for the area where the assault occurred.


While this case is of monumental importance in prosecuting supervisory liability claims, the New Mexico Tort Claims Act provides coverage for state employees who commit criminal acts while engaged in the service of their employers. Risk Management Division v. McBrayer, 129 N.M. 778, 2000 NMCA 104, 14 P.3d 43 (Ct. App. 2000). Thus, the importance of supervisory liability claims is not as great as in other jurisdictions. In New Mexico, a county's carrier would likely pay a judgment against a guard who sexually assaults an inmate.

Tutorial: What is a search?

Law enforcement officers and the public often have the misconception that an entry into a person's home, absent an active "looking for something or someone", is not a search under the Fourth Amendment. However, the physical act of crossing a home's threshold constitutes a "search" within the meaning of the Fourth Amendment. Payton v. New York, 445 U.S. 573, 576 (1980). Always remember that "search" is a legal term of art that means more than simply seeking out something or someone. Our courts describe a "search" as an intrusion upon a person's reasonable expectation of privacy.

Any entry into an area in which a person has a reasonable expectation of privacy is a search. Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. Brack, 188 F.3d 748, 755 (7th Cir. 1999)(hotel room). A warrantless search violates the Fourth Amendment when it is an unreasonable infringement on an objectively reasonable expectation of privacy. United States v. Jacobsen, 466 U.S. 109, 113 (1984). Warrantless searches are presumptively unreasonable. Minnesota v. Dickeson, 508 U.S. 366, 372 (1993).

The "advance of technology" necessarily changes what people can expect to be reasonably private, such as the ability to view property from the air. Kyllo v. United States, 121 S.Ct. 2038, 2043 (2001). However, use of a thermal imager to obtain information about the interior of a home was a search and an unreasonable search. Id.

Urine testing is a search. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 617 (1989).

Drawing blood is a search. Scmerber v. California, 384 U.S. 757, 770 (1966).

Extraction of DNA samples is a search. Shaffer v. Saffle, 148 F.3d 1180,1181 (10th Cir. 1998).

A dog sniff is not a search. United States v. Place, 462 U.S. 696, 707 (1983). A canine sniff on the exterior of a vehicle during a lawful traffic stop does not implicate legitimate privacy interests. Illinois v. Caballes, ___ U.S. ___, 125 S.Ct. 834, 838 (2005). Romo v. Champion, 46 F.3d 1013, 1018 (10th Cir. 1995)(as long as item is lawfully seized, dog sniff not unreasonable).

The use of electronic devices to capture conversations is a search. Berger v. New York, 388 U.S. 41, 51 (1967). However, there is no reasonable expectation of privacy in cordless phones. United States v. Mathis, 96 F.3d 1577, 1583 (11th CIr. 1996).

Touching or movement of luggage is not a search. Bond v. United States, 529 U.S. 334, 338-39 (2000). However, inspection of the interior of luggage is a search. Id.

Illuminating an area that is subject to public view is not a search as long the officer is legally present. Texas v. Brown, 460 U.S. 730, 739-40 (1983).

The act of moving property (stero)that is not contraband in a manner to inspect its serial numbers to determine if it was contraband was held to be a search. Arizona v. Hicks, 480 U.S. 321, 327 (1987).

In sum, always ask two questions:

1) Do you expect privacy in the place or property?

2) Is your expectation of privacy reasonable?

If so, the police viewing of the place or thing (or any other sensory intrusion into the place or thing) is a search.


Privacy Rights of Probationers "well below" Rights of Others

In United States v. Trujillo, 04-4074(April 12, 2005), the Tenth Circuit affirmed the denial of a parolee's motion to supress handguns seized from his home in a warrantless search of his home after his arrest. The Tenth Circuit rejected the defendant's argument that his arrest revoked his parole agreement and rendered unreasonable the subsequent warrantless search.

In Trujillo, the parolee had signed a parole agreement, which authorized the search of his home upon reasonable suspicion. The Tenth Circuit cited Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987), for the proposition that warrantless searches of probationers' homes when conducted pursuant to reasonable regulations are reasonable. United States v. Knights, 534 U.S. 112 (2001), made clear that a probation order allowing warrantless searches by probation officers and law enforcement officers extended to investigative searches as well as probationary searches.

The Trujillo Court found that the arrest of Trujillo, pursuant to a valid arrest warrant for parole violations, outside his residence did not vitiate the parole agreement he had signed. In joining the Seventh Circuit and the Third Circuit, the Tenth Circuit found that the officers were merely fulfilling the purpose of the parole agreement when they searched Trujillo's house.

Practitioner's Note:

If representing a probationer with a potential suppresion issue, always ask for Department of Corrections regulations on probation/parole searches. Most warrantless searches require reasonable suspicion.

Tenth Circuit tackles reasonable suspicion on the highways

On April 6, 2005, the Tenth Circuit affirmed a district court denial of a motion to supress drugs recovered from the locked suitcase of a motorist. United States v. Santos, No. 03-8059. In Santos, the Tenth Circuit decided that a motorist's drug offenses and his denial of a criminal record when combined with vague and evasive answers to questions about travel plans, nervousness, and a rental car contract that would expire before the completion of his trip provided reasonable suspicion to detain the motorist for a drug dog arrival. The opinion placed heavy reliance on the defendant's "prior criminal history of several drug offenses".

The initial detention was for speeding. Thus, the initial detention was reasonable. The defendant did not challenge the government's assertion that the continued questioning of defendant, after the purpose of the initial stop was completed, was consenual. The question then presented was whether the detention of defendant was reasonable after he consented to a search of his car trunk, but refused to consent to a search of his locked suitcase. The Tenth Circuit (McConnell, J.) said yes.

Judge McConnell did take issue with some of the oral statments of the District Court and with a number of the District Court's findings related to reasonable suspicion. Criminal defense paractitioners will take solace in some of Judge McConnell's pithy remarks:

1) Refusal to consent to a search does not support reasonable suspicion, even when the refusal to consent is selective.

The defendant had consented to a search of his trunk but denied consent to a search of his locked suitcase. Judge McConnell rejected any inference that such a refusal would provide reasonable suspicion - "If refusal of consent were a basis for reasonable suspicion, nothing would be left of Fourth Amendment protections."

2) Nervousness of a motorist is not probative unless "unusually severe or persistent".

However, the Court of Appeals will accept the District Court's finding of the nature of the nervousness even when a videotape appears to contradict the officer's testimony.

3) The length of the rental car agreement is not very probative unless evidence is introduced that the motorist was unable to extend the contract without penalty.

The Court distinguished Santos from United States v. McRae, 81 F.3d 1528 (10th Cir. 1996), because of the lack of any evidence of a penalty to Santos for exceeding the rental agreement period.

4) Vague and evasive answers to questions are not given "much independent weight".

As Judge McConnell stated, "Vague answers may sometimes be a polite way to sidestep impertinent questions."

5) Travel between "drug source cities" and "drug destination cities" is a "weak" factor.

The defendant was travelling from San Francisco to New York. You can almost read the laughter from the pages of the opinion.

6) A locked suitcase "adds nothing to the calculus" of reasonable suspicion.

Judge McConnell rejects the "experience" of law enforcement officers on the meaning of a locked suitcase, "Deference to law enforcement officers becomes inappropriate . . . when an officer relies on a circumstance incorrigibly free of associations with criminal activity.

New Mexico's own, Judge Hartz, wrote a one sentence concurring opinion letting us know that he would give more weight to the rental car agreement and the vague answers to travel plans, but that he believes Judge McConnell did a fine job.

Tenth Circuit strikes a blow at PLRA fee caps

On April 4, 2005, The Tenth Circuit Court of Appeals affirmed an award of attorney fees of close to $10,000 to an inmate who recovered $1.00 for a pre-incaceration deprivation of his fourth amendment right to be free of excessive force. In Robbins v. Larry Chronister, CV No. 02-3115, the Tenth Circuit, in a 2-1 opinion, affirmed an award of attorney fees above the PLRA cap, which is 150% of the judgment. 42 U.S.C. Sec. 1997e(d). The Court held that the application of the PLRA cap would be absurd. The opinion is available at

Ralph Robbins was in jail for aggravated assault on a law enforcement officer. While in jail, he decided to sue the police officer he tried to run over with his car. He apparently sued the officer for pumping two bullets into his chest and one in his side. The court appointed an attorney for Mr. Robbins. While the magistrate judge found that Mr. Robbins had the three bullets coming to him, the judge took exception to the officer's decision to attempt to extract Mr. Robbins from his car by smashing his car window with a baton. It should be noted that the smash and attempted grab technique occurred before Mr. Robbins assaulted the officer with his car. The court found excessive force and awarded $1.00 to Mr. Robbins.

Having pressed lawyers into service, the magistrate judge balked at awarding the erstwhile lawyers $1.50 for their time. The magistrate awarded ten thousand dollars to the attorneys and, we hope, removed them from the pro bono panel for a year. The defendant appealed. The United States of America successfully intervened.

Judge Seymour wrote that the application of the PLRA fee cap to cases arising out of pre-incarceration deprivation of civil rights would be an absurd result. The PLRA, she wrote, was designed to curb frivolous litigation related to prison conditions. Judge Seymour marshalls a stirring defense of Section 1988. She writes quite powerfully:

the damages a plaintiff recovers contributes significantly to the deterrence of civil rights violations in the future. This deterrent effect is particularly evident in the area of individual police misconduct, where injunctive relief generally is unavailable. Congress expressly recognized that a plaintiff who obtains relief in a civil rights lawsuit does not do so for himself alone but is also a private attorney general, vindicating a policy that Congress considered of the highest importance. . . . Congress did not intend for fees in civil rights cases . . . to depend on obtaining substantial monetary relief.

Right on Judge Seymour! Judge Hartz files a stingy dissenting opinion in which he expresses sympathy for "an attorney appointed by the court who is not compensated for the services rendered." Judge Hartz would have the attorney paid from "court funds", leaving us to wonder his planet of origin.