-- Paul E. Padilla
There are many differences between state and federal laws. In many cases, the differences are based on policy. A state law is usually influenced by what is important in that particular state, while federal law is based on national policy and a very different political perspective. But, once in a while the differences are a result of timing and chance.
The Fourth Amendment of the U.S. Constitution protects people from unreasonable searches and seizures by the government. This requires the police to get warrants, have probable cause for making arrests, and to follow many other procedural steps in law enforcement and investigation.
If the government doesn’t follow those procedures, the evidence they obtain can be excluded from prosecution, and may not be used against a person charged with a crime. This is called the Exclusionary Rule.
States also have constitutions, and many of them are almost identical to the U.S. Constitution. However, even though a state constitution may be identical to the U.S. Constitution, it may not have the same protections or be interpreted in the same way, because a state court is making the decision, rather than a federal court.
Generally, when the police attempt to execute a search warrant, they must knock on the door of the place to be searched, and announce that they are police. This is called the Knock and Announce Rule. Under federal law, if the police do not knock and announce, and instead kick in the door without warning, the courts have held that the evidence found at the location can still be used against a person charged with the crime, because the police’s failure was minor (based on policy).
However, in New Mexico, if the police do not knock and announce their presence, the evidence found at the location cannot be used against the person charged with the crime.
At first glance, you would think that New Mexico has a different policy than the federal government. But, the real answer as to why there is a difference is because New Mexico’s law has not changed since the federal government changed the federal law.
Therefore, until the New Mexico Supreme Court decides to change the rule, remember this: if the police don’t knock and announce and you are prosecuted in federal court, the evidence WILL BE used against you; if the police don’t knock and announce and you are prosecuted in state court, the evidence CANNOT BE used against you.
It may be scary, but it’s as simple as that.
There are many differences between state and federal laws. In many cases, the differences are based on policy. A state law is usually influenced by what is important in that particular state, while federal law is based on national policy and a very different political perspective. But, once in a while the differences are a result of timing and chance.
The Fourth Amendment of the U.S. Constitution protects people from unreasonable searches and seizures by the government. This requires the police to get warrants, have probable cause for making arrests, and to follow many other procedural steps in law enforcement and investigation.
If the government doesn’t follow those procedures, the evidence they obtain can be excluded from prosecution, and may not be used against a person charged with a crime. This is called the Exclusionary Rule.
States also have constitutions, and many of them are almost identical to the U.S. Constitution. However, even though a state constitution may be identical to the U.S. Constitution, it may not have the same protections or be interpreted in the same way, because a state court is making the decision, rather than a federal court.
Generally, when the police attempt to execute a search warrant, they must knock on the door of the place to be searched, and announce that they are police. This is called the Knock and Announce Rule. Under federal law, if the police do not knock and announce, and instead kick in the door without warning, the courts have held that the evidence found at the location can still be used against a person charged with the crime, because the police’s failure was minor (based on policy).
However, in New Mexico, if the police do not knock and announce their presence, the evidence found at the location cannot be used against the person charged with the crime.
At first glance, you would think that New Mexico has a different policy than the federal government. But, the real answer as to why there is a difference is because New Mexico’s law has not changed since the federal government changed the federal law.
Therefore, until the New Mexico Supreme Court decides to change the rule, remember this: if the police don’t knock and announce and you are prosecuted in federal court, the evidence WILL BE used against you; if the police don’t knock and announce and you are prosecuted in state court, the evidence CANNOT BE used against you.
It may be scary, but it’s as simple as that.
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