Wednesday, July 30, 2014

Narrow Ruling As To When Federal Court Can Consider New Evidence on Habeas Review

The Bureau of National Affairs' Criminal Law Reporter just released an article indicating that at least one federal circuit court of appeals is now allowing petitioners to present new evidence during habeas proceedings under narrow circumstances.

The United States Court of Appeals for the Sixth Circuit on May 28th of this year identified a situation when federal courts conducting habeas corpus review are not to limit themselves to the record that was before the state court when it denied the petitioner's claim.

Under the Antiterrorism and Effective Death Penalty Act, a federal court can grant habeas relief to a state prisoner where the state's court denial of relief "resulted in a decision that was contrary to, or an unreasonable application of clearly established Federal law, as developed by the Supreme Court of the United States."

In Cullen v. Pinholster, 89 CrL. 5 (U.S. 2011), the U.S. Supreme Court held that Congress's use of the past tense in the phrase "resulted in" limits the federal courts to the record that was before the state courts.

In an opinion by Judge Richard Allen Griffith, the Sixth Circuit said this rule does not apply when a federal court is evaluating a claim after determining that the State court's adjudication was an "unreasonable application" of the law.

The case involved a claim of racial discrimination in jury selection in violation of Batson v. Kentucky, 478 U.S. 79 (1986), and this is the second time it has been before the Sixth Circuit.  The first time around, the circuit court found that the Kentucky Supreme Court unreasonably applied federal law by failing to remand the case for a trial judge to conduct an evidentiary hearing.  It then remanded the case to the federal district judge to conduct an evidentiary hearing.

The district judge held the hearing and again denied the Batson claim.  The Sixth Circuit upheld the district judge's consideration of new evidence that was not part of the record before the state courts.  It said:

"Because the evidentiary hearing in this case was ordered as a remedy for a federal-law error that had already been found by this court on the basis of the record that was before the state courts. Pinholster does not bar consideration of the evidence introduced for the first time in the district court on remand."

The First and Fifth Circuits have reached the same conclusion in other Batson cases.  See Sanchez v. Roden,  95 CrL. 320 (1st. Cir. 2014) (remanding for federal hearing on Batson  claim); Smith v. Cain, 708 F.3d 628, 92 CrL. 576 (5th Cir.) 2013) (federal courts presented with Batson claims may consider facts that were not before the state appellate court when those facts would have been before the state judge who conducted the jury selection).

State Court's Decision Was An Unreasonable Application of Federal Law

The new evidence in this case was a videotape of a recess during trial voir dire.  The defense learned of its existence after trial.  On the video, the prosecutors can be overheard speaking to one another, and one of them said, "We've got [juror No.] 49, she's the old lady, the black lady.  The other one is already off."

The petitioner contended that the prosecutor's reference to "the other one" indicated he was exercising peremptory strikes on the basis of race.

The Kentucky Supreme Court disagreed.  It decided that the reference was to a juror to whom No. 49 had been seen talking and joking.

The first time the case was before the Sixth Circuit, it held that Batson and Hernandez v. New York, 500 U.S. 352 (1991), required a trial court--rather than an appellate court--to review the videotape evidence.  It ruled that the Kentucky Supreme Court's denial of the petitioner's claim constituted an "unreasonable application" of Batson and Hernandez.  The circuit court then remanded the case for the district court to find the facts relevant to the discrimination claim.

On remand, the district judge found that he was able to reconstruct a meaningful Batson hearing despite the lapse of 11 years since the petitioner's trial.  After reviewing the videotape and taking testimony from the trial participants, the district judge agreed with the state appellate court that the prosecution's peremptory strikes had not been improperly motivated by race.

Pinholster Doesn't Apply

The second time around, the Sixth Circuit said, "Pinholster is inapplicable to this case because it precludes consideration of evidence introduced in federal court only when determining whether a state court's adjudication of a claim involved an unreasonable federal-law error."

"Here, by contrast, the evidence introduced in federal court was not considered for the purpose of ascertaining whether the state court had unreasonably applied clearly-established federal law, because we had already concluded that the stater court had done so," the court said.  "Instead, the evidentiary hearing was ordered as a remedy for the state court's unreasonable federal-law error: the state court had denied Harris a meaningful Batson hearing before a trial court, so we ordered that he receive one, albeit in the federal district court."

On the merits of the petitioner's claim, the court rejected his arguments that the district judge's findings were clearly erroneous and that the prosecutor's lack of recollection of what he meant by his statement at the trial 11 years earlier rendered the reconstructed Batson hearing meaningless.

In an opinion concurring only in the result, Chief Judge Alice M. Batchelder reprised the points she made in her opinion dissenting from the prior decision to remand the case.  Clearly established federal law does not require a trial court to consider new Batson evidence, Batchelder said.  She also said this procedural question doesn't affect the reasonableness of the state court's "adjudication on the merits"  or the state court's "decision" as those terms are used in AEDPA.

Holdings: State v. Murry, New Mexico Court of Appeals

Dealing with an illegal seizure, the New Mexico Court of Appeals overturned a defendant's convictions based on violations of the defendant's Fourth Amendment rights.  The defendant in the case had accepted a conditional plea, in which she reserved the right to appeal the district court's denial of her motion to suppress.

The case, State v. Murry, was recently published by the New Mexico Court of Appeals with Judge Cynthia A. Fry writing the opinion for an undivided Court.

Holdings Regarding the Standard of Review for Appellate Review of Motions to Suppress

In reviewing a district court's ruling denying a motion to suppress, an appellate court draws all reasonable inferences in favor of the ruling and we defer to the district court's findings of fact so long as they are supported by substantial evidence.  State v. Jason L., 2000-NMSC-018, pp. 10-11, 129 N.M. 119, 2 P.3d 856.

If the district court does not state on the record a disbelief of uncontradicted testimony, we "presume the court believed all uncontradicted evidence."  State v. Jason L., 2000-NMSC-018, p. 11, 129 N.M. 119, 2 P.3d 856.

"When a seizure occurred and whether it was based on reasonable suspicion are mixed questions of fact and law because they involve the mixture of facts and evaluative judgments."  State v. Eric K., 2010-NMCA-040, p. 14, 148 N.M. 469, 237 P.3d 771.

A reviewing court conducts a de novo analysis of questions of law and fact in regards to a district court's denial of a motion to suppress.  State v. Eric K., 2010-NMCA-040, p. 14, 148 N.M. 469, 237 P.3d 771.

District Court's regularly do not make any factual findings regarding motions to suppress, an appellate court's have determined that "[t]his is a regular occurrence when [a reviewing court] reviews decisions on motion to suppress evidence in criminal cases."  State v. Gonzales, 1999-NMCA-027, p. 11, 126 N.M. 742, 975 P.2d 355.

Where the testimony at a motion to suppress is unclear, a reviewing court will decide in favor of the district court's ruling unless that ruling is wrong as a matter of law.  State v. Werner, 1994-NMSC-025, p. 10, 117 N.M. 315, 871 P.2d 971 (stating that "[a] reviewing court is not...bound by a [district] court's ruling when predicated upon a mistake of law." (internal quotation marks and citation omitted)).

Holdings Regarding the Issue of the Standard of Review for Determinations of Reasonable Suspicion

"Determinations of reasonable suspicion are reviewed de novo."  State v. Harbison, 2007-NMSC-016, p. 8, 141 N.M. 392, 156 P.3d 30.

Holdings Regarding the Issue of When a Person is Actually Seized

Only investigatory detentions and arrests are considered seizures for the purposes of the Fourth Amendment's protection against unreasonable seizures.  State v. Jason L., 2000-NMSC-018, p. 14, 129 N.M. 119, 2 P.3d 856.

"The point at which seizure occurs is pivotal because it determines the point in time the police must have reasonable suspicion to conduct an investigatory stop."  State v. Harbison, 2007-NMSC-016, p. 10, 141 N.M. 392, 156 P.3d 30.

Under United States V. Mendenhall, 446 U.S. 544 (1980), person is seized within the meaning of the [F]ourth [A]mendement when, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave."  State v. Lopez, 1989-NMCA-030, p. 4, 109 N.M. 169, 783 P.2d 479, holding modified on other grounds by Jason L., 2000-NMSC-018.

When a seizure actually occurs is a case-by-case determination balancing the intrusion into individual privacy against the State's interest in crime prevention, looking at the totality of the circumstances.   State v. Jason L., 2000-NMSC-018, p. 14, 129 N.M. 119, 2 P.3d 856.

Law enforcement does not need justification to approach a person and ask that person questions, so long as the actions of the officers do not "convey a message that compliance with their requests is required."  State v. Jason L., 2000-NMSC-018, p. 14, 129 N.M. 119, 2 P.3d 856 (internal quotations marks and citation omitted).

Police contact is consensual so long "as a reasonable person would feel free to disregard the police and go about his business [] or to decline the officers' requests or otherwise terminate the encounter." State v. Scott, 2006-NMCA-003, p.18, 138 N.M. 751, 126 P.3d 567 (internal quotation marks and citation omitted).

"If an officer conveys a message that an individual is not free to walk away, by either physical force or a showing of authority, the encounter becomes a seizure under the Fourth Amendment."  State v. Gutierrez, 2008-NMCA-015, p. 9, 143 N.M. 522, 177 P.3d 1096 (internal quotation marks and citation omitted).

For purposes of the Fourth Amendment, "a seizure based on a show of authority, as opposed to physical force, requires submission to the assertion of authority."  State v. Harbison, 2007-NMSC-016, p. 13, 141 N.M. 392, 156 P.3d 30 (emphasis, internal quotation marks, and citation omitted).

In making the determination as to whether a person was seized, a reviewing court evaluates "(1) the circumstances surrounding the contact, including whether police used a show of authority; and (2) whether the circumstances of the contact reached such a level of accosting and restraint that a reasonable person would have believed he or she was not free to leave."  State v. Scott, 2006-NMCA-003, p.7, 138 N.M. 751, 126 P.3d 567 (internal quotation marks and citation omitted).

The determination of the "circumstances surrounding the contact, including whether police used a show of authority" is a fact-based inquiry that a reviewing court reviews for substantial evidence.
State v. Jason L., 2000-NMSC-018, p. 19, 129 N.M. 119, 2 P.3d 856.

In making a determination regarding "whether the circumstances of the contact reached such a level of accosting and restraint that a reasonable person would have believed he or she was not free to leave" is a legal inquiry wherein a reviewing court applies the facts in the first-prong of the inquiry to the law de novo.  State v. Jason L., 2000-NMSC-018, p. 19, 129 N.M. 119, 2 P.3d 856.

Holdings Regarding the Issue of the Analysis of the First-Prong of the Seizure Determination

District Court's regularly do not make any factual findings regarding motions to suppress, an appellate court's have determined that "[t]his is a regular occurrence when [a reviewing court] reviews decisions on motion to suppress evidence in criminal cases."  State v. Gonzales, 1999-NMCA-027, p. 11, 126 N.M. 742, 975 P.2d 355.

Where the testimony at a motion to suppress is unclear, a reviewing court will decide in favor of the district court's ruling unless that ruling is wrong as a matter of law.  State v. Werner, 1994-NMSC-025, p. 10, 117 N.M. 315, 871 P.2d 971 (stating that "[a] reviewing court is not...bound by a [district] court's ruling when predicated upon a mistake of law." (internal quotation marks and citation omitted)).

Holdings Regarding the Issue of the Analysis of the Second-Prong of the Seizure Determination

Three factors should be considered in order to determine whether a reasonable person would fel free to walk away from an encounter from police: "(1) the conduct of the police, (2) the person of the individual citizen, and (3) the physical surroundings of the encounter."  State v. Jason L., 2000-NMSC-018, p. 15, 129 N.M. 119, 2 P.3d 856 (internal quotation marks and citation omitted).

Examples of circumstances that might indicate a seizure would be "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." State v. Lopez, 1989-NMCA-030, p. 3, 109 N.M. 169, 783 P.2d 479 (internal quotation marks and citation omitted).

A reviewing court, in making a determination of the second-prong of the seizure analysis, will consider whether an officer demands to speak to an individual and/or to approach an officer, rather than making a request of the individual.  State v. Jason L., 2000-NMSC-018, p. 17, 129 N.M. 119, 2 P.3d 856.

A reviewing court, in making a determination of the second-prong of the seizure analysis, will consider whether at any point the officer informed an individual that they are free to leave and were not required to answer any questions.  State v. Jason L., 2000-NMSC-018, p. 18, 129 N.M. 119, 2 P.3d 856 (ruling that while case law has not required such advice, its absence is a relevant factor of the second-prong analysis is a seizure determination).

"The critical factor is whether the policeman, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner which would be perceived as a non offensive contact if it occurred between two ordinary citizens."  State v. Garcia, 2009-NMSC-046, p. 38, 147 N.M. 134, 217 P.3d 1032 (holding relevant where the police officer "told, ordered, or yelled at [the d]efendant to stop" that such "initial actions" by police officers "demonstrated accosting or restraint")(internal quotation marks and citation omitted) (quoting 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, Section 9.4 (a), at 582-83 (5th ed. 2012) (footnotes omitted).

Where a defendant submits to show an authority, a seizure occurs.  State v. Soto, 2008-NMCA-032, p. 1, 143 N.M. 631, 179 P.3d 1239 (holding that a seizure occurred where police stopped a bicyclist while in their police unit, although they did not put on their emergency lights).

In Soto, the New Mexico Court of Appeals stated that a reviewing court presumes the citizen to be an innocent reasonable person and we "consider the sequence of the officer's actions and how a reasonable person would perceive those actions."  State v. Soto, 2008-NMCA-032, p. 6, 143 N.M. 631, 179 P.3d 1239 (internal quotation mark and citation omitted).

A reviewing court, in making a determination of the second-prong of the seizure analysis, will consider whether the officer poses any "preliminary questions" prior to questioning an individual after the stop, and whether the individual initiated the encounter, as well as whether the officer did not begin the encounter in a conversational manner.  State v. Williams, 2006-NMCA-062, p. 14, 139 N.M. 578, 136 P.3d 579 (internal quotation marks and citation omitted).

'It is well established that the initiation of a traffic stop constitutes a seizure of the vehicle's occupants."  State v. Portillo, 2011-NMCA-079, p.12, 150 N.M. 187, 258 P.3d 466; State v. Olson, 2012-NMCA-035, p. 11, 285 P.3d 1066 (holding that "[a]n automobile stop and the attendant detention of its occupants is a seizure" (internal quotation marks omitted)).

In the context of a traffic stop, "[a]ny reasonable passenger would have understood the officers to be exercising control to the point that no one in the car was free to depart without police permission."  Brendlin v. California, 551 U.S. 249, 250 (2007).

Merely "by staying inside a car", a passenger submitted to the assertion of police authority.  Brendlin v. California, 551 U.S. 249, 250, 262 (2007).

It is "reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety."  Brendlin v. California, 551 U.S. 249, 258 (2007).

When officer safety is a concern, "risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation."  Maryland v. Wilson, 519 U.S. 408, 414 (1997) (internal quotation marks and citation omitted).

"[U]nquestioned police command [is] at odds with any notion that a passenger would feel free to leave."  Brendlin v. California, 551 U.S. 249, 258 (2007) (alteration, internal quotation marks, and citation omitted).

"It would be incongruous for [a reviewing court] to hold that the Fourth Amendment provides greater protections for an individual in a moving vehicle than it provides for an individual in a nonmoving vehicle."  State v. Williams, 2006-NMCA-062, p. 17, 139 N.M. 578, 136 P.3d 579.

Holdings Regarding the Issue of Reasonable Suspicion at the Inception of the Seizure

"Reasonable suspicion must exist at the inception of the seizure."  State v. Jason L., 2000-NMSC-018, p. 20, 129 N.M. 119, 2 P.3d 856.

"An officer may stop and detain a citizen if the officer has a reasonable and articulable suspicion that the person stopped is or has been involved in criminal activity."  State v. Watley, 1989-NMCA-112, p. 17, 109 N.M. 619, 788 P.2d 375.

"The critical question...[is] whether the officer had an individualized suspicion that [the d]efendants were violating any law when he subjected [the d]efendants to detention."  State v. Patterson, 2006-NMCA-037, p. 23, 139 N.M. 322, 131 P.3d 1286.

Holdings Regarding the Issue of Suppression Due to Evidence Being Fruit of the Poisonous Tree

"It is established law that evidence discovered as  result of the exploitation of an illegal seizure must be suppressed unless it has been purged of its primary taint."  State v. Portillo, 2011-NMCA-079, p.25, 150 N.M. 187, 258 P.3d 466.

The New Mexico Court of Appeals has held that the Court "have conducted the fruits analysis in the exact same manner with respect to each type of occupant, whether driver or passenger."  State v. Portillo, 2011-NMCA-079, p.30, 150 N.M. 187, 258 P.3d 466 (internal quotation marks and citation omitted).

Where evidence was come by due to the exploitation of illegal conduct by law enforcement, the evidence must be suppressed.  Wong Sun v. United States, 371 U.S. 471, 488 (1963) (internal quotation marks omitted).

Holdings Regarding the Issue of the Inevitable Discovery Doctrine

For the inevitable discovery doctrine to apply, "the lawful means by which the evidence could have been attained must be wholly independent of the illegal actions" taken by law enforcement.  State v. Wagoner, 2001-NMCA-014, p.13, 130 N.M. 274, 24 P.3d 306.

Read the entire case here:
http://www.nmcompcomm.us/nmcases/nmca/slips/CA31,253.pdf


Tuesday, July 29, 2014

A Win For The Second Amendment

Here's an article on a Federal Judge's decision to strike down the last ban on public gun ownership.  The law was in effect in Washington D.C., and now, after a long fight, the federal courts have ruled that the law is unconstitutional.  

Remarkable Interview With Rusty Hardin

Words of wisdom about a wide range of legal quandaries.  His take on pretrial detention, the nature of the criminal justice system, and prosecutorial misconduct is worth the 40 or so minutes it takes to watch the clip.

Rusty is a classic, and a great legal philosopher.

Very good stuff.

https://www.youtube.com/watch?v=DFvl_sjGWGI

Monday, July 28, 2014

Holdings: State v. Mosley, New Mexico Court of Appeals

State v. Mosley is a case dealing with a search, in which the defendant argued at the district court level that police officers exceeded the scope of their search of his home.

The Court determines that the issue was not preserved by trial counsel, yet the Court also determines that the defendant has made a prima facie showing of ineffective assistance of counsel because his counsel failed to move to suppress the evidence that was discovered due to scope of the search being extended.  Subsequently, the Court remands the case back to the trial court to make further findings regarding the remedies due to counsel's ineffectiveness.

The case also deals with the issue of the law enforcement procedure of "knock-and-talk."

Holdings Regarding the Issue of Preservation of Error

"In order to preserve an issue for appeal, it must appear that a ruling or decision by the district court was fairly invoked" in a manner that specifically apprised the district court of the issue and resulted in an intelligent ruling therein.  State v. Lopez, 2008-NMCA-002, p. 8, 143 N.M. 274, 175 P.2d 942 (internal quotation marks and citation omitted).

Among other things, the preservation rule ensures that the opposing party has "a fair opportunity to show why the court should rule in its favor" and it "creates a record from which this Court may make informed decisions." State v. Lopez, 2008-NMCA-002, p. 8, 143 N.M. 274, 175 P.2d 942 (internal quotation marks and citation omitted).

The New Mexico Court of Appeals "will not reverse the trial court on grounds [that] the trial court was neither asked to consider nor had the opportunity to review."  State v. Aguilar, 1982-NMCA-116, p. 9, 98 N.M. 510, 650 P.2d 32.

Under some circumstances, a narrow suppression argument in the district court will not preclude review of a more broad argument on appeal.  See, e.g., State v. Ferguson, 2010-NMCA-048, pp. 8-13, 148 N.M. 811, 242 P.3d 378 (considering the defendant's suppression argument notwithstanding the facts that the suppression argument made in the district court was more narrow that that made on appeal because the defendant's arguments were such that the district court and the prosecution had a fair opportunity to address the issue).

Preservation requires a showing that a ruling or decision by the district court was fairly invoked and that  preservation serves to create "a record from which this Court may make informed decisions."  State v. Lopez, 2008-NMCA-002, p. 8, 143 N.M. 274, 175 P.2d 942 (internal quotation marks and citation omitted).


Holdings Regarding the Standard of Review of Ineffective Assistance of Counsel of Claims

We review Defendant's ineffective assistance of counsel claim de novo.  State v. Dylan J., 2009-NMCA-027, p. 33, 145 N.M. 719, 204 P.3d 44.


Holdings Regarding the Issue of Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution guarantees the right to the effective assistance of counsel.  Patterson v. LeMaster, 2001-NMSC-013, p.16, 130 N.M. 179, 21 P.3d 1132.

Remand for an evidentiary hearing on a claim of ineffective assistance of counsel "is appropriate only when the record on appeal establishes a prima facie case of ineffective assistance of counsel."  State v. Herrera, 2001-NMCA-073, p.35, 131 N.M. 22, 33 P.3d 22.

A prima facie case is made by showing (1) "that defense counsel's performance fell below the standard of a reasonably competent attorney[,]" and (2) that "due to the deficient performance, the defense was prejudiced."  Patterson v. LeMaster, 2001-NMSC-013, p.17, 130 N.M. 179, 21 P.3d 1132 (internal quotation marks and citation omitted).

Where a defendant has made a prima facie showing of ineffective assistance of counsel on appeal, the appellate court may remand "to allow the further development of the issue before the trial court."  Garcia v. State, 2010-NMSC-023, pp.28-29, 148 N.M. 414, 237 P.3d 716.

The two prongs of this test are known as "the reasonableness prong and the prejudice prong."  Patterson v. LeMaster, 2001-NMSC-013, p.17, 130 N.M. 179, 21 P.3d 1132 (internal quotation marks and citation omitted).

Holdings Regarding the Issue of the Reasonableness Prong of an Ineffective Assistance of Counsel Claim

Where an ineffective assistance of counsel claim is premised on counsel's failure to move to suppress evidence, a defendant "must establish that the facts support the motion to suppress and that a reasonably competent attorney would not have decided that such a motion was unwarranted."  Patterson v. LeMaster, 2001-NMSC-013, p.19, 130 N.M. 179, 21 P.3d 1132.

Holdings Regarding the Issue of the Prejudice Prong of an Ineffective Assistance of Counsel Claim

Where a meritorious motion to suppress key evidence could weaken the prosecution's case against the defendant, counsel's failure to make such a motion may prejudicially affect the defendant.  Patterson v. LeMaster, 2001-NMSC-013, pp.32-33, 130 N.M. 179, 21 P.3d 1132.

In cases where the defendant has accepted a plea instead of going to trial, a reviewing court will evaluate the prejudicial effect of his counsel's ineffective assistance by considering whether there is a reasonable probability that, had his counsel moved to suppress the at-issue evidence and been successful, the defendant would have gone to trial instead of entering a plea.  Patterson v. LeMaster, 2001-NMSC-013, p.33, 130 N.M. 179, 21 P.3d 1132 (concluding that in making the above determination, a reviewing court will consider the strength of the prosecution's evidence against the defendant aside from the evidence that would be subject to suppression).

Holdings Regarding the Privacy Interest In a Home

"The privacy of a home is afforded the highest level of protection by our state and federal constitutions."  State v. Haidle, 2012-NMSC-033, p. 13, 285 P.3d 668.

Holdings Regarding the Issue of "Knock-and-Talk" Tactic by Law Enforcement

The knock-and-talk investigatory tool is permissible under the New Mexico and United States Constitution.  See State v. Flores, 2008-NMCA-074, pp. 8, 14, 16, 144 N.M. 217, 185 P.3d 1067 (recognizing the constitutional permissibility of the knock-and-talk investigatory tool under the United States and New Mexico Constitutions).

A person who answers an officer's knock and consenting to police entry to a private residence, does not give police free reign to walk through or search a private residence.  See United States v. Curran, 498 F.2d 30, 33, (9th Cir. 1974) (holding that officers' expressed purpose of questioning the occupants of a residence "could not extend to [an officer's] movement past [the occupants] into other rooms"); see 1 Wayne R. LaFave, Search and Seizure, Section 2.3(b) (5th ed. 2013) (stating that, in the context of a knock-and-talk investigation, "the mere fact that the door of the house is opened in response to the officer's knock....does not mean that the officer is entitled to walk past the person so responding into the interior of the residence").

Holdings Regarding the Issue of the Exceptions to the Warrant Requirement

Warrantless searches and seizures are unconstitutional except in cases involving recognized exceptions including plain view and consent.  State v. Bond, 2011-NMCA-036, p. 11, 150 N.M. 451, 261 P.3d 599.

Holdings Regarding the Issue of the Plain View Exception to the Warrant Requirement

"Under the plain view exception to the warrant requirement, items may be seized without a warrant if the police officer was lawfully positioned when the evidence was observed, and the incriminating nature of the evidence was immediately apparent, such that the officer had probable cause to believe that the article seized was evidence of a crime."  State v. Ochoa, 2004-NMSC-023, p. 9, 135 N.M. 781, 93 P.3d 1286.

Holdings Regarding the Issue of the Consent Exception to the Warrant Requirement

"The scope of ... consent is constrained by the bounds of reasonableness[.]"  State v. Garcia, 1999-NMCA-097, p.13, 127 N.M. 695, 986 P.2d 491 (internal quotation marks and citation omitted).

A reviewing court will consider "what a police could reasonably interpret the consent to encompass." State v. Garcia, 1999-NMCA-097, p.13, 127 N.M. 695, 986 P.2d 491 (internal quotation marks and citation omitted).

A reviewing court will consider "what the typical reasonable person would have understood to be the scope of his or her consent under the circumstances.  United States v. Pena, 143 F.3d 1363, 1367-68, (10th Cir. 1998).

Reasonableness is measured objectively.  See State v. Ryan, 2006-NMCA-044, p. 30, 139 N.M. 354, 132 P.3d 1040 (noting that "the scope of a search is limited to the consent given, as measured by an objective reasonableness standard").

In determining what is or not reasonable, courts may rely on social norms to guide the inquiry.  See United States v. Mosley, 454 F.3d 249, 269 (3rd Cir. 2006) ("The exclusionary rule expresses, inherently and always, a standard of reasonableness that evolves along with ... social norms"); see also Florida v. Jardines, _____ U.S. ______, 133 S. Ct. 1409, 1415-16 (2013) relying on social norms to illustrate that it is reasonable for police to approach a private citizen's home and knock on the door just as "any private citizen might do[,]" but those norms do not permit police to use a trained police dog to explore the area around the home, an activity that if done by a private citizen might inspire the resident to call the police (internal quotation marks and citation omitted)).

A reviewing court may consider what a person would accept as socially acceptable behavior by "solicitors, hawkers[,] and peddlers of all kinds" to consider the permissibility of like behavior by police.  Florida v. Jardines, _____ U.S. ______, 133 S. Ct. 1409, 1415-16 (2013)(internal quotation marks and citation omitted).

"The scope of the consent is constrained by the bounds of reasonableness; what a police officer could reasonably interpret the consent to encompass."  State v. Garcia, 1999-NMCA-097, p.13, 127 N.M. 695, 986 P.2d 491 (internal quotation marks and citation omitted).

Holdings Regarding the Issue of the Fruit of the Poisonous Doctrine

"The fruit of the poisonous tree doctrine generally requires suppression of .... evidence obtained after an arrest made without probable cause."  State v. Montoya, 2008-NMSC-043, p. 12, 144 N.M. 458, 188 P.3d 1209 (omission in original) (internal quotation marks and citation omitted).

Read Mosley in its entirety here:
https://coa.nmcourts.gov/documents/opinions/Mosley%20FO.pdf

Sunday, July 27, 2014

Golden Brief: Ohio v. Clark

One of the petitions that is currently set for conference by the United States Supreme Court.

The two issues stated concisely:

1.  Is a child's statements to a teacher regarding abuse "testimonial" when the teacher is gathering the information to use in her duty as a "mandatory reporter" of child abuse and neglect?  

2.  And, does that duty make the teacher an agent of law enforcement?

Ohio's Supreme Court decided for the defendant and held that a child's statements to his teacher were "testimonial" and covered by the confrontation clause.

Here is Ohio's brief:
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/05/13-1352-pet.pdf

And the reply brief from the defendant:
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/07/13-1352-bio.pdf

Amazing stuff.

If the Supreme Court takes the case on, then big changes may be coming in the evidence used at trial in these types of cases, and if the Supreme Court refuses to grant Ohio's writ then state courts all over the country will be able to decide for themselves the remedy to be used, until their individual state supreme courts write their own decisions.

Friday, July 25, 2014

Article on the 8th Circuit's Recent Felon In Possession of a Firearm Case

Must read article regarding when a felon may, in very narrow circumstances, possess a firearm.  The article's subject is the recent 8th Circuit case of United States v. Cooney.

You can read the case here: http://media.ca8.uscourts.gov/opndir/14/07/133078U.pdf

And here is Professor Volokh's article on the case.  Simply a great read.
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/07/23/when-may-a-felon-who-is-generally-barred-from-possessing-a-gun-get-it-to-break-up-a-fight/