--Paul E. Padilla

On June 20, 2016, the U.S. Supreme Court issued a ruling in Utah v. Strieff that allows the police to use evidence in a criminal case, even when the police collect the evidence unconstitutionally.
 
The general rule is that if the police violate your constitutional rights when collecting evidence, they are not allowed to use that evidence to prosecute you in a criminal case. Although there are exceptions to this rule, it is a right created by the 4th Amendment of the U.S. Constitution. In short, the police cannot benefit from breaking the rules.
 
In Utah v. Strieff, the Supreme Court expanded one of the exceptions to the rule, which will allow the police to use evidence against you, even if the evidence is collected illegally.
 
In this case, the police were watching a house where they thought drugs were being sold. They saw a man walk out of the house and down the street. The police had no evidence that the man had committed any crime. The police stopped the man and demanded his ID. When the man gave the police his ID, they learned that he had an arrest warrant from a completely different crime, so they arrested him. As they arrested him, they discovered methamphetamine in his pocket, which was used against him at trial.
 
When the police first stopped the man, it was an illegal stop because the police did not have any evidence to believe that the man had committed a crime. Before this case, the drugs found in the man’s pocket could not have been used in his prosecution because the police violated his constitutional rights.

But, this case now allows the police to use the evidence in prosecution, even if the original stop was illegal. The Supreme Court expanded a rule called the “attenuation doctrine” so a court will now consider three factors to decide if the police can use the evidence:

1. temporal proximity (timing between the police’s illegal activity and finding the evidence);
2. intervening circumstances (the relationship between the reason for finding the evidence and the illegal activity); and
3. purpose and flagrancy of misconduct (what kind of illegal activity did the police do).

 
This test is very dangerous for ordinary citizens, because it gives the police an incentive to conduct illegal searches with the possibility of finding very bad evidence. 

For example, the police could pull over a car for no reason, with the hope that the driver has an arrest warrant, past due child support, or drugs in the car.  Essentially, it will reward the police for making illegal stops, as long as the illegal activity is minor (stopping you on the street or pulling your car over) and does not relate to the reason for the illegal search (they stop you while driving, but find that you have bail violations for other crimes).

The Court's full decision is below:

-- 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.

-- Paul E. Padilla

Last week, the New Mexico Court of Appeals released a decision that will have a big impact on New Mexico's DWI law. In the case of State v. Valdez (2013-NMCA-016), the Court of Appeals decided that anyone who is convicted of a DWI in New Mexico must have an interlock device installed in their car, even if the DWI did not involve alcohol.

In general, a person can be convicted of DWI if they are under the influence of any drug that impairs their ability to safely drive a vehicle. NMSA Section 66-8-102(B). However, the law also requires anyone convicted of any type of DWI “to obtain an ignition interlock license and have an ignition interlock device installed and operating on all motor vehicles drive by the offender[.]”  NMSA Section 66-8-102(N).

In the case of State v. Valdez, a woman was arrested for driving under the influence of oxycodone and other prescription pills, but had no alcohol in her system. The woman pled guilty to DWI, but challenged the requirement to have an interlock device installed in her car, because she had not been drinking when she was arrested.

Interlock devices can only detect alcohol, and do not test for other drugs, such as marijuana or prescription pills. Therefore, the woman argued that there was no basis to make her install the interlock device, since alcohol had nothing to do with her arrest.

However, the Court of Appeals did not agree, and ruled that it is reasonable to believe there is a “connection between the use of prescription drugs and the use of alcohol.”

Therefore, even if you have not been drinking, if you are pulled over and convicted of a DWI for pills, marijuana, or any other drugs, you will still need to register for and install an interlock device, which costs a lot of money. An interlock will cost an average of $1,000 per year, plus the cost of getting an interlock driver’s license ($63.00), and fines if you try and start your car with alcohol in your system.

-- Paul E. Padilla

Although alcohol-related offenses are a major concern in Colorado and New Mexico, many people don’t realize that if a criminal charge involves a car (like DUI or DWAI), there are two different legal processes that you will have to deal with. A criminal case will likely be started for violation of the law, but there will also be an administrative case to deal with revocation or suspension of your driver’s license.

In Colorado, a person must request an Express Consent hearing with the Department of Revenue within 7 days of being arrested or cited with an alcohol- or drug-related offense. In New Mexico, you have 10 days to request an Implied Consent hearing with the Motor Vehicle Division. These administrative hearings are similar to going to criminal court and will be based on the evidence collected when the person is arrested, but they are in addition to a criminal case and subject to different rules.

While there are differences between the criminal and administrative processes, both will apply the Express Consent law (in Colorado) or Implied Consent Act (in New Mexico), depending on where the person is arrested. In Colorado, the Express Consent law (C.R.S. § 42-4-1301.1) states that by receiving a driver’s license, you give permission for the police or other law enforcement agencies to take chemical tests to determine blood-alcohol or other drug levels, if they suspect you of driving under the influence.  In New Mexico, the Implied Consent Act (N.M.S.A. § 66-8-105) is fundamentally the same as Colorado’s law.

If you refuse to take chemical tests for alcohol or drugs, these laws allow the department of revenue to revoke your driver's license, even if they don’t have evidence of alcohol or drugs. The amount of time a person loses their license may also be longer if they refuse to take chemical tests than if they were convicted of a DUI.  However, that depends on the specific facts of your case.

Regardless, alcohol- and drug-related traffic offenses can result in fines, court cost, drug education classes, inter-lock devises, and restrictions or loss of your driver’s license, both in criminal court and in the administrative hearing.  But, what is important to remember is that you must proactively request an administrative hearing to challenge the revocation of your driver’s license, and that you must go through both the criminal and administrative processes.

-- Beth Padilla

Many people in Colorado are confused about the rules regarding voting if a person has been convicted of a felony. Importantly, every state has different voting laws, so this information only pertains to Colorado.

While waiting outside a court room in the Sixth Judicial District today, I found a pamphlet addressing whether an individual convicted of a felony may vote in Colorado. The pamphlet was produced by the Colorado Criminal Justice Reform Coalition and references C.R.S. 1-2-103(4).  The law states that an individual is not permitted to vote while serving a sentence or on parole for a felony sentence.

This brings up an important question: what does it mean to serve a sentence? If a person is sentenced to a period of time in jail/prison or is serving parole he or she is still serving his or her setence. This means that a person in jail/prison for a felony, or on parole for a felony is not eligible to vote in Colorado.

You can find more information on the Colorado Criminal Justice Reform Coalition's website: ccjrc.org.

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-- Paul E. Padilla

There was a lot of commotion this week, with the election season coming to an exciting end and focus turning to how new officials and policies will unfold. In Colorado, Amendment 64 passed, which permits recreational use of marijuana. While legalizing marijuana has been a hot topic for a long time, Amendment 64 certainly doesn’t end the debate.

I admit that I voted for Amendment 64, based on my belief and observations that the concept of “medical marijuana” is a misnomer. Having previously lived one block away from “Marijuana Mile” (South Broadway) in Denver, I have seen firsthand that there is minimal health care taking place in the thriving cannabis industry of Colorado. And, while I have no interest in using marijuana myself or expanding the general population’s access to it, I think marijuana is already widely available, so we might as well collect tax revenue to fund our deteriorating educational system (and maybe fix some potholes – pun intended).

My personal beliefs aside, Amendment 64 will raise many more issues than it resolves. Once the Amendment goes into effect, it will allow people 21 years old and up to possess an ounce of marijuana and grow six plants in their homes. This may decrease the number of criminal prosecutions for possession of marijuana, but it will likely open the flood gates to other legal issues.

The most significant problem that exists with recreational marijuana is federal law. A looming black cloud (no pun intended) will exist over Colorado as long as the federal government prohibits its use and possession. The obvious risk this creates is that an individual will have a false sense of security buying and carrying marijuana, because it is allowed under Colorado law. But that person may still be prosecuted in federal court, which is generally much more serious.

An additional issue created by the conflict with federal law is that marijuana dispensaries cannot open bank accounts, because the banking industry is regulated at the federal level. Because any banking activity connected with illegal activity (i.e. marijuana) is considered money laundering, dispensaries cannot accept credit cards or open bank accounts. Thus, you have a multi-million dollar industry that is stuffing its mattresses with cash. And lots of cash usually means lots of crime.

In addition to the federal issues, it is important to recognize the other legal consequences of recreational marijuana. In the west, DUI rates are incredibly high due to minimal public transportation and significant cultural factors. With expanded availability of marijuana, it is essentially guaranteed that the DUI rates will also increase.

Also, just as alcohol and alcoholism has been pervasive in family and employment law, marijuana’s impact will also grow (pun intended). Even though marijuana will now be legal and available, it doesn’t mean that the courts will allow or tolerate its use in family and employment settings.

So, while you may soon be able to buy marijuana freely in Colorado, it remains to be seen just how big of an impact recreational marijuana will really have on the state.

The financial and moral implications of a DUI conviction are widely known. MSN reported that the financial implications of a DUI total approximately $10,000. This figure is based upon the cost of bail, towing your vehicle, impound fees, increased auto insurance, legal fees, probation fees, and perhaps even a breathalyzer system installed in your vehicle. The risk to human life is obviously a serious implication of drunken driving.

However, the true cost of a DUI may lie beyond the financial and moral implications. DUIs can impact a person’s child custody case and immigration
status.

In a child custody case, the judge must determine what is in the best interests of the child. Some factors judges use to determine the best interests of a child include the mental and physical well-being of both parents and the ability of each parent to place the needs of the child above his or her own needs. If a parent has a recent DUI conviction, a judge may believe that parent has a drinking problem and therefore could question his or her mental well being. In addition, a judge may believe that a parent with a DUI cannot put the needs of a child above his or her own needs to drink alcohol. A DUI conviction can negatively impact a child custody case.

In addition, a DUI may impact an individual’s immigration status. Many immigrants are brought to the attention of Immigration and Custom Enforcement (ICE) once they are arrested. Often, an immigrant will be arrested for a DUI and then will face a deportation case. Importantly, even lawful permanent residents, or people with a green card, may be deported. A DUI conviction impacts whether an individual can get an immigration bond if the immigration judge believes he or she is a danger to the community. Finally, a DUI conviction can impact an individual’s defenses to deportation.

In conclusion, the true cost of a DUI includes much more than $10,000 and the risk to human life. A DUI conviction may negatively impact your ability to see your children or remain in the United States.

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The Colorado legislature encourages individuals to call 911 when someone is experiencing a drug or alcohol overdose and therefore passed S.B. 12-20 in May, 2012. Many people that are breaking the law are afraid to call the police because they do not want to be arrested or get into trouble. The new law provides immunity for a person that calls 911, in good faith, to report an emergency drug or alcohol overdose. The requirements for immunity are as follows: 1) call 911; 2) in good faith; 3) during an overdose emergency; 4) remain at the scene until law enforcement or emergency response personnel arrive; 5) identify yourself; and 6) cooperate with authorities.

Importantly, the person reporting the emergency may only be immune for prosecution for the following offenses: possession or use of a controlled substance (class 6 felony or misdemeanor); possession of 12 ounces or less of marijuana; display, consumption, or use of less than 2 ounces of marijuana; transferring or dispensing 2 ounces or less of marijuana from person to person without an exchange of money; unlawful use or possession of synthetic cannabinoids; possession of drug paraphernalia; and illegal possession or consumption of alcohol.

So, what does that mean? Here is an example: John is 18 years old, drinking alcohol in his freshman dorm room at college and his roommate appears to have overdosed on alcohol, John may call the police without be arrested for consuming alcohol as a minor. The law is intended to encourage individuals to seek medical attention for someone that appears to have overdosed on alcohol or drugs without fearing they will be arrested.


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In light of recent events, this week I decided to write about police reports. For those who do not know me personally, yesterday my car was broken into and the stereo was stolen. To add insult to injury, it was broad daylight, it was parked in front of my house, I was home at the time, and the front door to the house was wide open.

Nonetheless, in dealing with the situation I learned about a valuable and convenient tool offered by the Denver Police Department: Report a Crime Online.

I think there are two main reasons why people don’t make police reports when something bad happens. Firstly, it can be a burden to call the police, wait for a patrol car to arrive, and then fill out the paperwork in an interview-like manner. Commonly, this is all done sitting in the hot sun or in a freezing blizzard, while waiting in the parking lot of a closed down Blockbuster or Jack-in-the-Box. Secondly, I think many people underestimate how important a police report is, especially if you later need to make an insurance claim or pursue legal action.

Yesterday, in looking for the Denver Police Department’s non-emergency phone number, I came across the Report a Crime Online program. Generally speaking, instead of calling a police unit to respond in person, you can now go online and fill out a loss or accident report on your own. You submit the report and receive a temporary case number, and, after the report is reviewed and approved, it is officially filed and a formal case number is assigned.  Everything is emailed to you almost instantly.

This is a brilliant system. It allows you the time and ability to make the report at your convenience, once you have the knowledge and wherewithal to know the extent of your damages or loss.  Additionally, it does not require a police officer, who likely has other duties to perform (and would prefer to be doing those other duties) to make a personal visit to witness a broken car window.

As far as the importance of filing a report, the system makes it so easy to file a report that there is no good reason not to do it. I have spoken to many people who didn’t think they need a police report, because “the damage didn’t look that bad.”  But, a few weeks down the line, the quote comes back from the body shop and an insurance claim is the only way to afford the repairs.  Without a police report, it makes it much more difficult to make an insurance claim (and there may be additional fees too), and a police report can prove to be invaluable in any legal action.

I am not suggesting that if you get involved in a traffic accident, you should necessarily exchange info, proceed home, and file the report online (even though it is possible).  There are still many situations where calling the police and having a patrol car arrive on-scene is the best, if not only, way to proceed and protect your interests. But, in light of the increasing and ever-present instances of petty theft and vandalism, Report a Crime Online is a great and stress-reducing system that takes a little bit of the sting out of the process.