december 24, 2014 • volume 53, no. 52 · bar bulletin - december 24, 2014 - volume 53, no52 . 5...

Inside This Issue

December 24, 2014 • Volume 53, No. 52

Table of Contents .................................................... 3

U.S. District Court, District of New Mexico Full-time Magistrate Judge Position ............... 4 Part-time Magistrate Judge Position............... 5

2015 Board of Bar Commissioners Officers ....... 5

A Message from the State Bar President: The Year in Review ..................................................6

Committee on Women and the Legal Profession: New Officers and Finance Program ............... 7 Reception for the Justice Minzner Award ..... 7

Clerk’s Certificates ................................................ 13

From the New Mexico Court of Appeals

2014-NMCA-107, No. 31,097: State v. Trammell .............................................. 15

2014-NMCA-108, No. 32,476: State v. Yazzie .................................................... 18

2014-NMCA-109, No. 32,015: South v. Lujan ................................................... 22

2014-NMCA-110, Nos. 31,412/31,895: State v. Sabeerin ................................................ 26

2014-NMCA-111, No. 32,774: State v. Allen ..................................................... 31

Snow Meadow by Jacqueline Gutierrez (see page 3)

2 Bar Bulletin - December 24, 2014 - Volume 53, No. 52

Your 2015 State Bar licensing fees and certifications are due Dec. 31, 2014, and must be completed by Feb. 1, 2015,

to avoid non-compliance and related late fees.

Complete your annual licensing requirements at www.nmbar.org.

Payment by credit and debit card* and e-check are available.

If you have any questions, please call 505-797-6083 or email [email protected].

*Online payment by credit and debit card will incur a service charge.

State Bar of New Mexico2015 Licensing

Notification

http://www.nmbar.org

mailto:[email protected]

Bar Bulletin - December 24, 2014 - Volume 53, No. 52 3

Notices ................................................................................................................................................................42015 Board of Bar Commissioners Officers .............................................................................................5A Message from the State Bar President: The Year in Review ...........................................................6Legal Education Calendar .............................................................................................................................8Writs of Certiorari ......................................................................................................................................... 10Court of Appeals Opinions List ................................................................................................................. 12Clerk’s Certificates ......................................................................................................................................... 13Recent Rule-Making Activity ..................................................................................................................... 14Opinions

From the New Mexico Court of Appeals2014-NMCA-107, No. 31,097: State v. Trammell ....................................................................... 15

2014-NMCA-108, No. 32,476: State v. Yazzie .............................................................................. 18

2014-NMCA-109, No. 32,015: South v. Lujan ............................................................................. 22

2014-NMCA-110, Nos. 31,412/31,895: State v. Sabeerin ....................................................... 26

2014-NMCA-111, No. 32,774: State v. Allen ................................................................................ 31

Advertising ...................................................................................................................................................... 35

Officers, Board of Bar Commissioners Erika Anderson, President Martha Chicoski, President-Elect J. Brent Moore, Vice President Scotty A. Holloman, Secretary-Treasurer Andrew J. Cloutier, Immediate Past President

Board of Editors Ian Bezpalko, Chair George C. Kraehe Kristin J. Dalton Maureen S. Moore Jocelyn C. Drennan Tiffany L. Sanchez Jennifer C. Esquibel Mark Standridge Bruce Herr Joseph Patrick Turk

State Bar Staff Executive Director Joe Conte Managing Editor D.D. Wolohan 505-797-6039 • [email protected] Communications Coordinator Evann Kleinschmidt 505-797-6087 • [email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri 505-797-6058 • [email protected] Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo

©2014, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

505-797-6000 • 800-876-6227 • Fax: 505-828-3765 E-mail: [email protected]. • www.nmbar.org

December 24, 2014, Vol. 53, No. 52

Table of Contents

Meetings

January 20156 Bankruptcy Law Section BOD, Noon, U.S. Bankruptcy Court

8 Employment and Labor Law Section BOD, Noon, State Bar Center

8 Business Law Section BOD, 4 p.m., via teleconference

8 Elder Law Section BOD, Noon, State Bar Center

8 Public Law Section BOD, Noon, Montgomery and Andrews, Santa Fe

9 Animal Law Section BOD, Noon, State Bar Center

9 Prosecutors Section BOD, Noon, State Bar Center

14 Children’s Law Section BOD, Noon, Juvenile Justice Center

state Bar Workshops

January 20157 Divorce Options Workshop 6 p.m., State Bar Center

7 Civil Legal Fair 10 a.m.–1 p.m., Second Judicial District Court, Third Floor Conference Room, Albuquerque

13 Legal Resources for the Elderly Workshop 9:30–10:30 a.m., Presentation Noon–3 p.m., Clinics Mary Ether Gonzales Senior Center, Santa Fe

28 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center

31 Consumer Debt/Bankruptcy Workshop 9 a.m., The Law Office of Kenneth Egan, Las Cruces

Cover Artist: Painting New Mexico and Tuscany landscapes has been Jacqueline’s primary focus—capturing the subtleties and intensities of light, which are essential to her work. She was inspired by the artistry of her father, Abad Lucero, who was a renaissance man in New Mexico art history. She can be reached at [email protected].










NoticesProfessionalism Tip

With respect to my clients:

I will advise my client that civility and courtesy are not weaknesses.

Court neWsNew Mexico Board of Legal SpecializationComments Solicited The following attorneys are applying for certification as a specialist in the areas of law identified. Application is made under the New Mexico Board of Legal Special-ization, Rules 19-101 through 19-312 NMRA, which provide that the names of those seeking to qualify shall be released for publication. Further, attorneys and others are encouraged to comment upon any of the applicant’s qualifications within 30 days after the publication of this notice. Address comments to New Mexico Board of Legal Specialization, PO Box 93070, Albuquerque, NM 87199.Estate Planning, Trusts and Probate Law

Vickie WilcoxNatural Resources Law

James Brockmann

First Judicial District CourtMass Reassignment of Cases Effective Dec. 24, a mass reassignment of cases will occur pursuant to NMSC Rule 23-109, the Chief Judge Rule. All of the cases previously assigned to Hon. Jennifer L. Attrep, Division IX, will be reassigned to Hon. David K. Thomson, Division VI. Parties who have not previously exercised their right to challenge or excuse will have 10 days from Jan. 7, 2015, to challenge or excuse the judge pursuant to Rule 1-088.1.

Second Judicial District CourtNotice of Mass Reassignment to Judge Cristina T. Jaramillo Pursuant to the constitution of the State of New Mexico, Cristina T. Jaramillo has been elected to Division VIII at the Second Judicial District Court. Effective Dec. 8, Judge Jaramillo was assigned criminal court cases previously assigned to Judge Kenneth H. Martinez, Division XXIV. Pursuant to Supreme Court Rule 1-088.1, parties who have not yet exercised a pe-remptory excusal will have 10 days from Dec. 24 to excuse Judge Jaramillo.

Notice of Mass Reassignment to Judge Victor S. Lopez Pursuant to the constitution of the State of New Mexico, Victor S. Lopez has been elected to Division XXVII at the Second Judicial District Court. Effective Dec. 1, Judge Lopez was assigned civil court cases

previously assigned to Judge Ned S. Fuller, Division XXVII. Pursuant to Supreme Court Rule 1-088.1 parties who have not yet exercised a peremptory excusal will have 10 days from Dec. 24 to excuse Judge Lopez.

Fifth Judicial District CourtMass Reassignment Effective Dec. 4, a mass reassignment of cases occurred pursuant to NMSC Rule 23-109. Judge Raymond Romero, Division I, Eddy County was assigned all pending cases with case types child support, child support enforcement and parentage in which the child support enforcement divi-sion is a party. Pursuant to Supreme Court Rule 1-088.1, parties who have not yet exercised a peremptory excusal will have 10 days from Jan. 7, 2015, to excuse Judge Romero.

13th Judicial District CourtInvestiture Ceremony for Hon. Cheryl H. Johnston The Judges and employees of the 13th Judicial District Court invite all to attend the investiture ceremony of Hon. Cheryl H. Johnston, Division VIII, Sandoval County. The ceremony will take place at 3:30 p.m., Jan. 9, 2015, at the Sandoval County District Courthouse, 2nd floor, courtroom 2013. For more information, contact Terecina Marquez at 505-865-4291, ext. 2104.

Bernalillo County Metropolitan CourtMass Reassignment of Cases A mass reassignment of cases will oc-cur pursuant to Rule 23-109 NMRA, the Chief Judge Rule, and as a consequence of the recent election. Effective Dec. 15, Judge Courtney B. Weaks, elected to Divi-sion IV, will be assigned criminal court cases previously assigned to Judge Chris Schultz; Judge Jill M. Martinez, elected to Division VIII, will be assigned criminal court cases previously assigned to Judge R. John Duran; Judge Vidalia Chavez, elected to Division XIV, will be assigned criminal court cases previously assigned to Judge Peg Holguin; and Judge Kenny C. Montoya, elected to Division XV, will be

assigned criminal court cases previously assigned to Judge Jason Greenlee. Pursuant to Rule 7-106 NMRA, parties who have not yet exercised the right to excuse a judge will have 10 days from Dec. 15 to file a notice of excusal.

U.S. District Court for the District of New MexicoAmendments to Local Rules of Civil Procedure With concurrence of the Article III Judges the amendments to the Local Rules of Civil Procedure of the U.S. District Court, for the District of New Mexico, have been approved and adopted. The amendments include D.N.M.LR-Civ. 83.2, Bar Admissions, Memberships and Dues and the addition of 83.13, Conviction of a Crime. Amendments went into effect Dec. 1. The latest version of the Local Rules of Civil Procedure can be found at www.nmcourt.fed.us.

Court Closure The U.S. District Court for the District of New Mexico will close at 1 p.m. on Dec. 24. Court will resume on Dec. 29. After-hours access to CM/ECF will remain available as regularly scheduled. Stay cur-rent with the U.S. District Court for the District of New Mexico by visiting the Court’s website, www.nmcourt.fed.us.

Magistrate Judge Position (Full Time) The Judicial Conference of the U.S. has authorized the appointment of a full-time U.S. Magistrate Judge for the District of New Mexico at Albuquerque. The current annual salary of the position is $183,172. The term of office is eight years. A full public notice and application forms for the U.S. Magistrate Judge position are posted in the Clerk’s Office of the U.S. District Court at all federal courthouses in New Mexico, and on the Court’s website, www.nmcourt.fed.us. Application forms may also be obtained from the intake counter at all federal courthouses in New Mexico or by calling 575-528-1439. Applications must be received by Jan. 9, 2015. All applications will be kept confi-dential.

http://www.nmcourt.fed.us





www.nmbar.org

Magistrate Judge Position (Part Time) The Judicial Conference of the U.S. has authorized the appointment of a part-time U.S. Magistrate Judge for the District of New Mexico at Roswell. The current an-nual salary of the position is $46,134. The term of office is four years. A full public notice for this position and the application form may be obtained from the intake counter at all federal courthouse locations in New Mexico, by calling 575-528-1439, or by visiting the court’s website at www.nmcourt.fed.us. Applications must be received by Jan. 23, 2015. All applications will be kept confidential, unless the ap-plicant consents to disclosure.

state Bar neWsAttorney Support Groups• Jan. 5, 2015, 5:30 p.m. First United Methodist Church, 4th

and Lead SW, Albuquerque (The group meets the first Monday of the month.)

• Jan. 12, 2015, 5:30 p.m. UNM School of Law, 1117 Stanford

NE, Albuquerque, Room 1119 (The group meets the second Monday of the month.)

• Feb. 16, 2015, 7:30 a.m. First United Methodist Church, 4th

and Lead SW, Albuquerque (The group meets the third Monday of the month.)

• For more information, contact Bill Stratvert, 505-242-6845.

The 2015 officers of the Board of Bar Commissioners were sworn in on Dec. 10 at the Supreme Court courtroom. From left are Secretary-Treasurer Dustin K. Hunter, President Martha Chicoski, Vice President Scotty A. Holloman and President-elect J. Brent Moore.

2015 Board of Bar Commissioners offiCers

Board of Bar CommissionersAppointment to the Commission on Professionalism The Board of Bar Commissioners will make one appointment for a non-lawyer public member to the Commission on Professionalism for a two-year term. Non-lawyer public members who want to serve on the Commission should send a letter of interest and brief résumé by Dec. 31 to Executive Director Joe Conte, State Bar of New Mexico, P.O. Box 92860, Albuquer-que, NM 87199-2860; fax to 828-3765; or e-mail to [email protected].

Notices continued on page 7






The Year in reviewDear Members,

It is hard to believe this year brings to a close my 10 year “State Bar Journey!” I started with the Board of Bar Commissioners as the Young Lawyers Division Chair, have worked through the ranks, and will serve as Immediate Past President in 2015, my final year of service to the BBC. I believe we were successful this year at laying the foundation for more good work to come. The Bar leadership is strong and impressive and I want to thank them for their hard work this year. The officers have consistently worked together for the good of the whole and this cohesive approach makes for a very stable, progressive organization. I also want to thank Joe Conte and the State Bar staff for all the amazing work they do.

I want to express my thanks to those of you who took the time to contact me regard-ing issues and concerns facing our profession this year and I hope the dialogue will continue. As I pass the gavel to Martha Chicoski, who will serve as your next President, I would like to give you a brief update on some of the major issues we’ve tackled this year.

I made a commitment at the beginning of my year as President to assist the Supreme Court in its effort to secure adequate funding for our state courts. The State Bar helped build a coalition to support the Court’s initiative. By as-sembling Chief Judges from throughout the State, the State Bar, lobbyists, national assistance, key legislators and other interested parties, a working group formed to promote five Court initiatives. Through a unified budget request, the Court requested an increase in the Court’s base budget, five new judges, an increase in judicial compensation, more money for drug courts and a fix to the judicial retirement system. By all accounts, it was a very successful endeavor and I am pleased that the State Bar was able to take an active role.

In addition this year, the Board of Bar Commissioners supported an admission on motion rule proposed by the Board of Bar Examiners. Reciprocal licensing has been discussed and debated many times over the years. The Supreme Court has adopted an admission on motion rule for New Mexico to be effective June 1, 2015. The State Bar is currently work-ing with the Court, the Board of Bar Examiners and MLCE to prepare for this rule change. In 2015, the State Bar will also begin administering the IOLTA program as directed by the Supreme Court and we are working on making this a smooth transition.

The BBC also worked diligently to approve and adhere to a very tight and balanced budget for 2014, which is on track to meet its goals for the year. Similarly, the BBC will continue to be diligent in its fiduciary responsibility to New Mexico lawyers.

Along with the substantive work of the State Bar, we also enjoyed a very successful and well-attended Annual Meeting, as well as an enjoyable CLE trip to Alaska. These events are terrific opportunities for networking and camaraderie, as well as valuable CLE programming.

Finally, as I end 10 years of service, I would like to thank all of the members who participate in the State Bar’s sections, committees and divisions. Your hard work is truly appreciated and our State Bar is a better organization for your efforts. I encourage all members to get involved.

I thank you for the opportunity to serve as President of the State Bar of New Mexico. It has been a pleasure and an honor, and an experience I will always treasure. Sincerely,

Erika E. Anderson, President State Bar of New Mexico


www.nmbar.org

Committee on Women and the Legal ProfessionNew Officers and January Program on Finance Congratulations to Zoe Lees and Deanza Sapien, who are the new co-chairs of the Committee on Women and the Legal Profession for 2015. The Committee’s first program of the new year is on financial literacy, 5:30–7 p.m., Jan. 14, 2015, at the State Bar Center. Join Renée Gwyther, MBA, CFP of Gwyther & Holt Invest-ment Advisors and Devona L. Benavidez, Financial Advisor at Morgan Stanley, for a seminar geared towards personal financial planning for women. The seminar will give an overview of credit, debt management, investment, saving and planning for retire-ment. R.S.V.P. to [email protected] to attend.

Reception for the Justice Pamela B. Minzner Outstanding Advocacy for Women Award Join the State Bar Committee on Women and the Legal Profession in pre-senting the 2014 Justice Pamela B. Minzner Outstanding Advocacy for Women Award to attorney Jane Rowe for her outstanding advocacy for women in conjunction with Saranam, an Albuquerque non-profit providing housing and education services to families transitioning out of homeless-ness. The award reception will be held 5:30–8:30 p.m., Jan. 29, 2015, at Hotel Andaluz in Albuquerque. Hors d’oeuvres will be provided by the Committee and a cash bar will be available. R.S.V.P. to Evann Kleinschmidt at [email protected].

unMLaw LibraryHours Through Jan. 4, 2015Building & Circulation Monday–Thursday 8 a.m.–8 p.m. Friday 8 a.m.–6 p.m. Saturday 8 a.m.–5 p.m. Sunday Noon–8 p.m.Reference Monday–Friday 9 a.m.–6 p.m. Librarian on call 3–6 p.m. Saturday–Sunday ClosedClosures Dec. 24, 2014–Jan. 2, 2015

New Mexico Lawyers and Judges

Assistance Program

Help and support are only a phone call away. 24-Hour Helpline

Attorneys/Law Students505-228-1948 • 800-860-4914

Judges888-502-1289

www.nmbar.org/JLAP/JLAP.html

The Edward Group Disability Insurance

Personal income and retirement plan protection or for overhead expenses or

partner buyout. Coverage is offered with over 50 other carriers for disability, life,

long-term care insurance and employee benefits.

Discount pricing for State Bar members. Visit http://www.edwardgroup.net/

disability1.htm. Contact John Edward, 1-877-880-4041

or [email protected].

Member BenefitF e a t u r e d

Note that this issue of the Bar Bulletin is the final one for 2014.

To be included in the Jan. 7, 2015, issue, all notices and editorial content must be submitted by Monday, Dec. 22.

The regular Notices deadline will resume for the Jan. 14, 2015, issue. Submit content by Jan. 5, 2015.

Submit content to [email protected].

Bar Bulletin Holiday Deadlines

other BarsAlbuquerque Bar AssociationMonthly Membership Luncheon The Albuquerque Bar Association’s Membership Luncheon will be held at noon, Jan. 13, 2015, at the Embassy Suites Hotel in Albuquerque. Join the Association at 11:30 a.m. for networking. New Mexico Board of Bar Examiners Chair Howard Thomas and Executive Director Carol Skiba will present “Admission on Motion in New Mexico,” a discussion of the adop-tion of a process for reciprocal admission by motion by the New Mexico Supreme Court. From 1:15–2:15 p.m., Judge David Thuma, Judge Jim Starzynski, Paul Fish and Nathalie Martin will present “What Every Lawyer Needs to Know: Bank-ruptcy” (2.0 G). Register at www.abqbar.org.

Albuquerque Lawyers ClubMonthly Lunch Meeting The Albuquerque Lawyers Club invites members of the legal community to its January lunch meeting. Damon P. Marti-nez, U.S. attorney for the District of New Mexico, is the featured speaker. The lunch meeting will be held at noon, Jan. 7, 2015, at Seasons Restaurant in Albuquerque. Cost: free to members, $30 for non-members. For more information, email [email protected] or call 505-844-3558.

other neWsWorkers’ Compensation AdministrationDestruction of Mediation Exhibits In accordance with NMAC 11.4.4.9(Q), Forms, Filing and Hearing Procedures: Return of Records, on an ongoing basis, the New Mexico Workers’ Compensation Administration will be destroying all mediation exhibits filed in cases in which the recommended resolution has been issued, excluding cases on appeal. The exhibits are stored at 2410 Centre Ave SE, Albuquerque, New Mexico, 87106. For more information, contact the Workers’ Compensation Administration at 505-841-6810 or 1-800-255-7965 and ask for Dana Chavez, clerk of the court.

Continued from page 5


http://www.edwardgroup.net/



http://www.nmbar.org/JLAP/JLAP.html

http://www.abqbar



Legal EducationDecember

29 Ethics and Professionalism: Advice from the Bench and Bar

2.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

29 Police Misconduct: Understanding §1983 Civil Rights Actions

3.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

29 The Law and Horses in New Mexico 6.7 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

29 2014 N.M. Family Law Institute: Get with the Times: Bringing Your Family Law Practice into 2015 (Day Two)

5.0 G, 1. EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

30 Oil and Gas: From the Basics to an In-Depth Study

6.0 G, 1.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

January 2015

6 Estate Planning in 2015: A Look Forward

1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

7 Upcoming 2015 Legislative Session 2.0 G Live Seminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

8 2015 UCC Update: Secured Transactions, Notes, Sales and More


13 Structuring Minority-Stake & “Class B” Interests in Business Arrangements


14 Will Contests: Common Grounds for Challenges & How to Defeat or Avoid Them


15 Employees, Social Media, Smartphones, Tablets: Legal Issues for Employers


16 Attorney Ethics & the Use of Credit Cards in Law Firms

1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

20–21 Selling Closely-Held Companies to Employees, Parts 1–2


22 Estate Planning for Pre- and Post-Nuptial Agreements


23 Ethics of Maintaining Client Confidences in a Digital World


27 Splitting the Difference: “Earnouts” in Business Sales


28 Ground Leases in Real Estate Transactions


30 Ethics, Disqualifications & Sanctions


http://www.nmbarcle.org


















Legal Education www.nmbar.org

February 2015

3 Estate Planning for Digital Age 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

4 Buying & Selling Partnership/LLC Interest- Economic, Management & Tax Issues


5 Ethics, Email and Law Practice 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

9 Warrants, Options & Other Incentives in Business Transactions


10–11 Ethics Update, Parts 1–2 2.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

12 Estate & trust Planning for Educational Expenses


13 Management Agreements in Real Estate


16 2015 Nonprofit/Exempt Organization Update


17–18 Drafting C and S Corp Stockholder Agreements, Parts 1–2


19 Duress & Undue Influence in Estate & Trust Planning


20 The Ethics of Billing & Collecting Attorney Fees


24 Drafting Independent Contractor Agreements
















Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Writs of CertiorariAs Updated by the Clerk of the New Mexico Supreme Court

Petitions for Writ of Certiorari Filed and Pending:

Date Petition FiledNo. 35,029 State v. Abeyta COA 33,485 12/12/14No. 35,028 State v.

Gonzalez COA 33,942/33,882 12/12/14No. 35,026 Boyd v. United States COA 32,119 12/11/14No. 35,025 State v. Noriega COA 33,323 12/09/14No. 35,024 State v. Begaye COA 33,677 12/09/14No. 35,023 State v. Richard S. COA 33,938 12/08/14No. 35,022 Dills v.

N.M. Heart Institute COA 33,725 12/05/14No. 35,018 State v. Tafoya COA 33,556 12/05/14No. 35,017 State v. Padilla COA 33,830 12/05/14No. 34,962 Jones v. Auge COA 32,178 12/05/14No. 35,016 State v. Baca COA 33,626 12/03/14No. 35,013 State v. Maldonado COA 33,403 12/03/14No. 35,011 Segura v. Franco 12-501 12/03/14No. 35,010 Chavez v. State 12-501 12/03/14No. 35,006 State v. Brito COA 33,827 12/01/14No. 35,005 State v. Archuleta COA 32,794 11/26/14No. 35,004 State v. Olague COA 33,422 11/26/14No. 35,007 State v. Nabhan COA 32,780 11/25/14No. 35,003 State v. Foulk COA 33,347 11/25/14No. 34,999 State v. Graham COA 33,366 11/25/14No. 34,998 State v. Kalouria COA 33,655 11/24/14No. 34,997 T.H. McElvain Oil & Gas v.

Benson COA 32,666 11/24/14No. 34,993 T.H. McElvain Oil & Gas v.

Benson COA 32,666 11/21/14 Response filed 12/8/14No. 34,992 State v. Faulkner COA 33,582 11/21/14No. 34,991 State v. Schultz COA 33,652 11/21/14No. 34,990 State v. Price COA 33,726 11/21/14No. 34,987 State v. Perkins COA 33,665 11/20/14No. 34,986 State v. Chavez-Valdez COA 33,570 11/20/14No. 34,989 State v. Jones COA 33,443 11/19/14No. 34,978 Atherton v. Gopin COA 32,028 11/14/14 Response filed 11/21/14No. 34,974 Moses v. Skandera COA 33,002 11/12/14 Responses filed 12/1/14No. 34,964 Segura v. Van Dien COA 32,656 11/05/14No. 34,960 Griffin v. Casinova 12-501 11/03/14 Response ordered; filed 12/8/14No. 34,949 State v. Chacon COA 33,748 10/27/14 Response filed 10/31/14No. 34,946 State v. Kuykendall COA 32,612 10/23/14No. 34,945 State v. Kuykendall COA 32,612 10/23/14No. 34,940 State v. Flores COA 32,709 10/22/14 Response ordered; filed 12/8/14No. 34,937 Pittman v.

N.M. Corrections Dept. 12-501 10/20/14No. 34,932 Gonzales v. Sanchez 12-501 10/16/14No. 34,931 Perry v. Franco 12-501 10/15/14

No. 34,928 State v. Luevano COA 31,741 10/14/14No. 34,929 Freeman v. Love COA 32,542 10/10/14 Response filed 10/24/14No. 34,881 Paz v. Horton 12-501 10/08/14No. 34,913 Finnell v. Horton 12-501 09/22/14No. 34,916 State v. Duran COA 33,271 09/12/14No. 34,907 Cantone v. Franco 12-501 09/11/14No. 34,885 Savage v. State 12-501 09/08/14No. 34,878 O’Neill v. Bravo 12-501 08/26/14No. 34,796 Miller v. Ortiz 12-501 08/08/14No. 34,777 State v. Dorais COA 32,235 07/02/14 Response filed 7/31/14No. 34,790 Venie v. Velasquz COA 33,427 06/27/14 Response ordered; due 8/22/14No. 34,765 Helfferich v. Frawner 12-501 06/24/14No. 34,793 Isbert v. Nance 12-501 06/23/14No. 34,775 State v. Merhege COA 32,461 06/19/14No. 34,776 Serna v. Franco 12-501 06/13/14No. 34,748 Smith v. State 12-501 06/06/14No. 34,731 Helfferich v. Frawner 12-501 05/29/14No. 34,739 Holguin v. Franco 12-501 05/21/14No. 34,706 Camacho v. Sanchez 12-501 05/13/14No. 34,691 Wetson v. Nance 12-501 05/07/14 Response ordered; filed 7/14/14No. 34,633 Vespender v. Janecka 12-501 04/29/14No. 34,589 Seager v. State 12-501 04/23/14No. 34,571 Fresquez v. State 12-501 04/07/14No. 34,563 Benavidez v. State 12-501 02/25/14 Response ordered; filed 5/28/14No. 34,303 Gutierrez v. State 12-501 07/30/13No. 34,067 Gutierrez v. Williams 12-501 03/14/13No. 33,868 Burdex v. Bravo 12-501 11/28/12 Response ordered; filed 1/22/13No. 33,819 Chavez v. State 12-501 10/29/12No. 33,867 Roche v. Janecka 12-501 09/28/12No. 33,539 Contreras v. State 12-501 07/12/12 Response ordered; due 10/24/12No. 33,630 Utley v. State 12-501 06/07/12

Certiorari Granted but not yet Submitted to the Court:

(Parties preparing briefs) Date Writ IssuedNo. 33,725 State v. Pasillas COA 31,513 09/14/12No. 33,837 State v. Trujillo COA 30,563 11/02/12No. 33,877 State v. Alvarez COA 31,987 12/06/12No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 33,994 Gonzales v. Williams COA 32,274 08/30/13No. 33,863 Murillo v. State 12-501 08/30/13No. 33,810 Gonzales v. Marcantel 12-501 08/30/13No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13No. 34,274 State v. Nolen 12-501 11/20/13No. 34,400 State v. Armijo COA 32,139 12/20/13No. 34,443 Aragon v. State 12-501 02/14/14

Effective December 12, 2014


Writs of CertiorariNo. 34,548 State v. Davis COA 28,219 03/14/14No. 34,549 State v. Nichols COA 30,783 03/28/14No. 34,526 State v. Paananen COA 31,982 03/28/14No. 34,522 Hobson v. Hatch 12-501 03/28/14No. 34,582 State v. Sanchez COA 32,862 04/11/14No. 34,637 State v. Serros COA 31,975 05/01/14No. 34,694 State v. Salazar COA 33,232 06/06/14No. 34,669 Hart v. Otero County Prison 12-501 06/06/14No. 34,650 Scott v. Morales COA 32,475 06/06/14No. 34,630 State v. Ochoa COA 31,243 06/06/14No. 34,764 State v. Slade COA 32,681 08/01/14No. 34,789 Tran v. Bennett COA 32,677 08/01/14No. 34,769 State v. Baca COA 32,553 08/01/14No. 34,786 State v. Baca COA 32,523 08/01/14No. 34,784 Silva v. Lovelace Health

Systems, Inc. COA 31,723 08/01/14No. 34,805 King v.

Behavioral Home Care COA 31,682 08/15/14No. 34,798 State v. Maestas COA 31,666 08/15/14No. 34,843 State v. Lovato COA 32,361 08/29/14No. 34,834 SF Pacific Trust v.

City of Albuquerque COA 30,930 08/29/14No. 34,772 City of Eunice v. N.M. Taxation and

Revenue. Dept. COA 32,955 08/29/14No. 34,726 Deutsche Bank v.

Johnston COA 31,503 08/29/14No. 34,668 State v. Vigil COA 32,166 09/26/14No. 34,855 Rayos v. State COA 32,911 10/10/14No. 34,728 Martinez v. Bravo 12-501 10/10/14No. 34,812 Ruiz v. Stewart 12-501 10/10/14No. 34,886 State v. Sabeerin COA 31,412/31,895 10/24/14No. 34,866 State v. Yazzie COA 32,476 10/24/14No. 34,854 State v. Alex S. COA 32,836 10/24/14No. 34,830 State v. Mier COA 33,493 10/24/14No. 34,826 State v. Trammel COA 31,097 10/24/14

Certiorari Granted and Submitted to the Court:

(Submission Date = date of oralargument or briefs-only submission) Submission DateNo. 33,548 State v. Marquez COA 30,565 04/15/13No. 33,971 State v. Newman COA 31,333 07/24/13No. 33,808 State v. Nanco COA 30,788 08/14/13No. 33,862 State v. Gerardo P. COA 31,250 08/14/13No. 33,969 Safeway, Inc. v.

Rooter 2000 Plumbing COA 30,196 08/28/13No. 33,898 Bargman v.

Skilled Healthcare Group, Inc. COA 31,088 09/11/13

No. 33,884 Acosta v. Shell Western Exploration and Production, Inc. COA 29,502 10/28/13

No. 34,013 Foy v. Austin Capital COA 31,421 11/14/13

No. 34,085 Badilla v. Walmart COA 31,162 12/04/13No. 34,146 Madrid v.

Brinker Restaurant COA 31,244 12/09/13No. 34,093 Cordova v. Cline COA 30,546 01/15/14No. 34,194/34,204

King v. Faber COA 34,116/31,446 02/24/14No. 33,999 State v. Antonio T. COA 30,827 02/26/14No. 33,997 State v. Antonio T. COA 30,827 02/26/14No. 34,287 Hamaatsa v.

Pueblo of San Felipe COA 31,297 03/26/14No. 34,120 State v. Baca COA 31,442 03/26/14No. 34,583 State v. Djamila B. COA 32,333 07/29/14No. 34,122 State v. Steven B. consol. w/

State v. Begaye COA 31,265/32,136 08/11/14No. 34,286 Yedidag v.

Roswell Clinic Corp. COA 31,653 08/11/14No. 34,499 Perez v. N.M. Workforce

Solutions Dept. COA 32,321/32,330 08/13/14No. 34,546 N.M. Dept. Workforce Solutions v.

Garduno COA 32,026 08/13/14No. 34,271 State v. Silvas COA 30,917 08/25/14No. 34,365 Potter v. Pierce COA 31,595 08/25/14No. 34,435 State v. Strauch COA 32,425 08/27/14No. 34,447 Loya v. Gutierrez COA 32,405 08/27/14No. 34,295 Dominguez v. State 12-501 09/24/14No. 34,501 Snow v. Warren Power COA 32,335 10/01/14No. 34,311 State v. Favela COA 32,044 10/27/14No. 34,607 Lucero v.

Northland Insurance COA 32,426 10/29/14No. 34,554 Miller v.

Bank of America COA 31,463 11/10/14No. 34,488 State v. Norberto COA 32,353 11/17/14No. 34,487 State v. Charlie COA 32,504 11/17/14No. 34,516 State v. Sanchez COA 32,994 12/17/14No. 34,613 Ramirez v. State COA 31,820 12/17/14No. 34,476 State v. Pfauntsch COA 31,674 12/17/14

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 34,939 State v. Green COA 31,787 12/11/14No. 34,973 BOKF v. Lopez COA 34,005 12/10/14No. 34,981 State v. Aceves COA 33,681 12/08/14No. 34,980 State v. Minoli COA 33,406 12/08/14No. 34,977 State v. Ortega-Leal COA 33,625 12/08/14No. 34,976 State v. Jacquez COA 33,684 12/08/14No. 34,975 State v. Frank COA 33,741 12/08/14


OpinionsAs Updated by the Clerk of the New Mexico Court of Appeals

Wendy F. Jones, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925


Slip Opinions for Published Opinions may be read on the Court’s website:http://coa.nmcourts.gov/documents/index.htm

Published Opinions

No. 33288 WCA-11-2397, I BEGAY v CONSUMER DIRECT (affirm) 12/11/2014

Unublished Opinions

No. 33767 11th Jud Dist McKinley CR-12-233, STATE v L Reeves (affirm) 12/08/2014No. 33942 2nd Jud Dist Bernalillo CR-10-2431, STATE V J GONZALEZ 12/08/2014 (affirm in part, reverse in part and remand)No. 32488 2nd Jud Dist Bernalillo CR-1998-2008, STATE v J IBARRA (affirm and remand) 12/09/2014No. 33196 2nd Jud Dist Bernalillo CV-10-7778, INTERNATIONAL v CITY OF ALB 12/10/2014 (reverse and remand)No. 33579 13th Jud Dist Cibola CR-11-50, STATE v T ARMENDARIZ (reverse and remand) 12/10/2014No. 33620 3rd Jud Dist Dona Ana JR-13-196, STATE v EDUARDO L (affirm) 12/10/2014No. 33696 5th Jud Dist Chaves CR-13-046, STATE v J BUTLER (affirm) 12/10/2014No. 33712 8th Jud Dist Taos CV-12-261, L JARAMILLO v UNITRIN AUTO (dismiss) 12/10/2014No. 33809 3rd Jud Dist Dona Ana CR-12-728, STATE v J MARTINEZ (affirm) 12/10/2014No. 33407 12th Jud Dist Otero CV-05-329, D BEAGLES v TIMBERON (affirm) 12/11/2014No. 33872 2nd Jud Dist Bernalillo LR-12-62, STATE v T MCKNIGHT (affirm) 12/11/2014No. 33930 11th Jud Dist San Juan CR-11-941, STATE v R GARCIA (affirm) 12/11/2014

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PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860


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Effective December 8, 2014:Jonathan A. AbbottPO Box 2368Amherst, MA 01004-2368

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to Active Status

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Effective December 8, 2014:Joseph David CamachoJoseph David Camacho Law Firm, LLC2900 Louisiana Blvd. NE, North Bldg., Suite HAlbuquerque, NM [email protected]

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Kathryn Adelle Hammel3603 Gun Club Road SWAlbuquerque, NM 87121

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Clerk’s Certificate of Admission

On December 9, 2014:John A. O. FalolaThe Weeksman PressPO Box 271569Flower Mound, TX 75027-1569310-643-1777

On December 9, 2014:Cecilia Renn KurzwegMora Valley Community Health Services, Inc.State Hwy. 518, MM 26, PO Box 209Mora, New Mexico [email protected]

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On December 2, 2014:Jocilyn Brieanna OylerOffice of the Second Judicial District Attorney520 Lomas Blvd. NWAlbuquerque, NM 87102-2118

On December 11, 2014:Ryan J. WityakPeacock Myers, PCPO Box 26927201 Third Street NW, Suite 1340 (87102)Albuquerque, NM [email protected]





Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Recent Rule-Making ActivityAs Updated by the Clerk of the New Mexico Supreme Court


Pending Proposed Rule Changes Open for Comment:

Comment Deadline

For 2014 year-end rule amendments that become effective Dec. 31, 2014, see the Nov. 5, 2014, issue of the Bar Bulletin (Vol. 53, No. 45) or visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us/nmrules/NMRuleSets.aspx.

Recently Approved Rule Changes Since Release of 2014 NMRA:

Effective Date

Children’s Court Rules and Forms

10-102 Commencement of action. 08/31/1410-315 Custody hearing. 07/01/1410-317 Notice of change in placement. 08/31/1410-323 Dismissal of a respondent or child;

party dismissal sheet. 08/31/1410-343 Adjudicatory hearing; time limits;

continuances. 07/01/1410-501A Abuse and neglect party information sheet. 08/31/1410-565 Advance notice of change of placement. 08/31/1410-566 Emergency notice of change of placement. 08/31/1410-567 Abuse and neglect party dismissal sheet. 08/31/14

Rules of Appellate Procedure12-206A Expedited appeals from Children’s Court

custody hearings. 07/01/1412-303 Appointment of counsel. 07/01/14

Rules Governing Admission to the Bar15-102 Admission requirements. 06/01/1515-103 Qualifications. 06/01/1515-105 Application fees. 06/01/1515-107 Admission by motion. 06/01/15

Supreme Court General Rules23-109 Chief judges. 04/23/14

To view all pending proposed rule changes (comment period open or closed), visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.

To view recently approved rule changes, visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us.

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Advance Opinions http://www.nmcompcomm.us/

From the New Mexico Supreme Court and Court of Appeals

Certiorari Granted, October 24, 2014, No. 34,826


Opinion Number: 2014-NMCA-107

STATE OF NEW MEXICO, Plaintiff-Appellee,

v.LUCAS TRAMMELL,

Defendant-AppellantDocket No. 31,097 (filed July 16, 2014)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYDENISE BARELA-SHEPHERD, DISTRICT JUDGE

GARY K. KINGAttorney General

YVONNE M. CHICOINEAssistant Attorney General

Santa Fe, New Mexicofor Appellee

JORGE A. ALVARADOChief Public Defender

MARY BARKETAssistant Appellate Defender

THE LAW OFFICES OF THE PUBLIC DEFENDER

Santa Fe, New Mexicofor Appellant

Opinion

Roderick T. Kennedy, Chief Judge1 The memorandum opinion previously filed in this matter on March 17, 2014, is hereby withdrawn, and this Opinion is substituted therefor.2 We determine that our opinion in State v. Edwards applies retroactively to Defen-dant’s case, and he thus suffered ineffective assistance of counsel. 2007-NMCA-043, 141 N.M. 491, 157 P.3d 56. Lucas Tram-mell (Defendant) stole a pick-up truck, discovering after he drove off that a child was in it. Among other offenses, he pled guilty to committing false imprisonment of a minor, which, at the time, was consid-ered a sex offense requiring registration under the Sex Offender Registration and Notification Act (SORNA), NMSA 1978, § 29-11A-3 (2000). Defendant was not informed that he was required to register as a sex offender until he was released from custody. Defendant moved to withdraw his plea, claiming that his attorney’s failure to inform him of this consequence con-stituted ineffective assistance of counsel. We conclude that Edwards did not state a new rule of procedure and thus applies

retroactively to Defendant’s plea. Because his attorney’s performance was deficient and he suffered prejudice, we hold that his counsel’s assistance was ineffective and reverse the district court’s denial of his mo-tion to withdraw his plea. Although he has served his sentence in full, we permit him to withdraw his plea for false imprison-ment and remand for further proceedings in the case as may be required. I. BACKGROUND3 Pursuant to a plea agreement, Defen-dant was convicted of five felony counts related to his theft of a pick-up truck. Because a minor child was in the truck during the theft, two of those pleas were to negligent child abuse and false imprison-ment of a minor child, which, at the time of his crimes, required him to register under SORNA, NMSA 1978, §§ 29-11A-1 to -10 (1995, as amended through 2013). This requirement apparently escaped the notice of the State, the district court, and defense counsel, as it was not mentioned in the plea agreement, and the appropriate box was not checked in the judgment and sentence. In his standard plea agreement, Defendant admitted one prior felony that enhanced one of his sentences and waived time limits by providing for habitual of-

fender enhancement of the remaining four sentences should he violate probation or parole “before completing the sentence in this case[.]” Defendant’s sentences were imposed consecutively. He was released from prison to serve two years proba-tion and parole as ordered by the district court and acknowledged by Defendant on the probation order. Six months prior to his release from prison, Defendant was informed that, upon his release, he would be subject to registration as a sex offender under SORNA. He did not object to this and, upon his release, duly registered as a sex offender. The probation and parole division assigned him to their sex offender unit. The distinguishing requirement of sex offender supervision, for purposes of this case, was a behavioral contract Defendant executed, in which he agreed not to have unsupervised contact with minors, or to date or marry a person with custody of minors without obtaining prior permission of his probation officer. 4 About a year-and-a-half after his release, Defendant was arrested when he battered a fourteen-year-old boy during a domestic disturbance with the boy’s mother, who was Defendant’s girlfriend. Defendant was also accused of violating the terms of his behavioral contract by not receiving prior permission to date or marry anyone who has custody of a minor child. Both probation and parole violations were filed against him as a result. Defen-dant moved to dismiss the second allega-tion, alleging that the requirement was not part of the sentence ordered by the district court and a violation of his due process rights. With roughly six months remaining on his sentence, the State initiated habitual offender enhancement proceedings. De-fendant’s parole was revoked because he had violated its conditions, requiring him to comport himself while on probation as a law-abiding citizen and abide by his probation officer’s assessment of his risk as an offender. Based on the violation of De-fendant’s parole, the State sought to impose the remaining four habitual enhancements to his sentence as per his plea agreement. 5 Defendant subsequently moved to modify his sentence based on his argument that the terms of his probation and parole were illegal. Defendant further sought to withdraw his plea, contending that, at the time of the plea, he was not made aware that he would be subject to sex offender registration or conditions of sex offender

http://www.nmcompcomm.us/


http://www.nmcompcomm.us/Advance Opinionsprobation and parole. He argued that, be-cause he was not informed of the collateral consequences of his plea, he suffered inef-fective assistance of counsel. Defendant also argued against imposition of habitual offender enhancement on the four counts, alleging that his sentence had largely been served, and the State had no further time in which to proceed. The district court im-posed four, one-year enhancements on the remaining counts and denied Defendant’s motions. The State withdrew the probation violation. Defendant appealed. II. DISCUSSION6 Because we reverse Defendant’s con-viction, we do not address the propriety of conditions imposed on his probation and parole following his release from cus-tody. Defendant argues that he should be able to withdraw his plea, as it could not have been made knowingly and volun-tarily without his knowledge that he was pleading to a sex offense that required SORNA registration. He maintains that it was ineffective assistance of counsel to fail to inform him of that consequence and that he would have rejected the plea if he had known of it. The State argues that it was not ineffective assistance because Edwards does not apply retroactively to Defendant’s plea and, even if it did, he failed to show that he was prejudiced by his attorney’s failure. The district court agreed. To the extent that the State argues that the district court did not have juris-diction to hear the motion to withdraw the plea, we agree with Defendant that any possible delays with his motion were waived by the district court when it ac-cepted and permitted the issue to be fully litigated. 7 We review a district court’s denial of a motion to set aside a plea for abuse of discretion. Edwards, 2007-NMCA-043, ¶ 16. “The district court abuses its discretion in [this context] . . . when the undisputed facts establish that the plea was not knowingly and voluntarily given.” State v. Paredez, 2004-NMSC-036, ¶ 5, 136 N.M. 533, 101 P.3d 799 (internal quotation marks and citation omitted). However, we are not precluded from “correcting errors premised on the [district] court’s misapprehension of the law[.]” State v. Barnett, 1998-NMCA-105, ¶ 13, 125 N.M. 739, 965 P.2d 323. “Furthermore, whether a defendant must be advised of certain consequences of a plea as a matter of due process of law is a question of law that we review de novo.” Edwards, 2007-NMCA-043, ¶ 16.

8 The parties filed a joint statement regarding mootness of this case now that Defendant has been released from custody. They disagree whether the issue of his motion to withdraw based on ineffective assistance of counsel for failure to advise him of SORNA registration is moot. We agree with Defendant that, because he is still subject to registration, the issue is not moot. Because we do not address the merits of Defendant’s other arguments, we need not consider whether they are moot.9 Our standard for a plea is well estab-lished:

In New Mexico, a plea agreement must be interpreted, understood, and approved by the trial court. A court is not to accept a guilty plea absent an affirmative show-ing on the record that the plea was voluntary and intelligent. The defendant must understand his guilty plea and its consequences. The burden is on [the d]efendant to demonstrate that the failure to comply with the prescribed plea procedure prejudiced his abil-ity to knowingly and voluntarily enter his plea.

State v. Moore, 2004-NMCA-035, ¶ 14, 135 N.M. 210, 86 P.3d 635 (alterations, internal quotation marks, and citations omitted). 10 In Edwards, we held:

[W]e follow Paredez and con-clude that defense counsel has an affirmative duty to advise a defendant charged with a sex offense that a plea of guilty or no contest will almost certainly sub-ject the defendant to the registra-tion requirements of SORNA. . . . Failure to so advise the defendant amounts to deficient perfor-mance under the Strickland test.

Edwards, 2007-NMCA-043, ¶ 31. Under Edwards, Defendant unquestionably suf-fered ineffective assistance of counsel. However, Defendant’s plea occurred in 2004, prior to our opinion in Edwards. The question in this case is whether Edwards applies retroactively to govern the behav-ior of Defendant’s counsel. “Retroactivity is a legal question, which we review de novo.” Kersey v. Hatch, 2010-NMSC-020, ¶ 14, 148 N.M. 381, 237 P.3d 683 (internal quotation marks and citation omitted). 11 We analyze retroactive application of case law under the standards articulated in Teague v. Lane, 489 U.S. 288, 310 (1989). “If it is an old rule, it applies both on direct and collateral review. If it is a new rule, it

generally applies only to cases that are still on direct review.” State v. Ramirez, 2012-NMCA-057, ¶ 6, 278 P.3d 569 (internal quotation marks omitted) (citing State v. Frawley, 2007-NMSC-057, ¶ 34, 143 N.M. 7, 172 P.3d 144, aff ’d, 2014-NMSC-___, ___ P.3d ___ (No. 33,604, June 19, 2014. A new rule “breaks new ground or imposes a new obligation on the states.” Ramirez, 2012-NMCA-057, ¶ 9 (alterations, internal quotation marks, and citation omitted). “[T]he result was not dictated by prec-edent existing at the time the defendant’s conviction became final.” Id. ¶ 7 (internal quotation marks and citation omitted). 12 In Ramirez, we held that our decision in Paredez retroactively applied the concept that it was ineffective assistance for counsel to fail to provide advice regarding immigra-tion consequences to a plea. Ramirez, 2012-NMCA-057, ¶ 10. In deciding Ramirez, we applied the Teague analysis and stated that “it had been clear before [the p]etitioner’s conviction that those norms obligated attorneys to advise their clients about de-portation consequences.” Ramirez, 2012-NMCA-057, ¶ 10. Our Supreme Court recently affirmed our opinion, rejecting contrary federal law and holding that Pare-dez did not state a new rule and thus applied retroactively. Ramirez, 2012-NMCA-057, ¶ 17. Our Supreme Court based its affirma-tion on prevailing professional norms and the long standing presence of a question about immigration status in our state plea colloquy. Id. New Mexico is not bound to follow contrary federal law on retroactiv-ity. See Danforth v. Minnesota, 552 U.S. 264, 280-81 (2008). The district court in this case rejected retroactive application of Edwards, stating that it announced a new rule of law. Following Ramirez, we reverse and determine that it is not a new rule. 13 Like immigration, SORNA registra-tion is a collateral consequence of a plea that has harsh adverse consequences. Moore, 2004-NMCA-035, ¶ 24; State v. Druktenis, 2004-NMCA-032, ¶ 33, 135 N.M. 223, 86 P.3d 1050. 14 In much the same way that our Supreme Court relied on the existence of a requirement to discuss immigration in our state plea colloquy, we determine that counsel was required to discuss possible SORNA registration with Defendant based partly on the fact that a line on Defendant’s judgment and sentence paperwork called into question possible SORNA registration. Under the probation conditions section of his sentencing document, various require-ments are listed and corresponding boxes



http://www.nmcompcomm.us/Advance Opinionschecked or unchecked in accordance with the conditions of Defendant’s sentence. One possible condition is that “Defendant [s]hall [r]egister as a [s]ex [o]ffender pursuant to [S]ection . . . 29-11A-1 . . . as amended.” The box next to this item is un-checked. The district court and Defendant’s counsel signed the sentencing document. 15 Not only does the fact that the SORNA registration box was not checked as a part of Defendant’s sentence bolster his argument that he was unaware of the potential for registration, it is clear that, at the time of his plea, SORNA registra-tion should have been considered by the distict court and counsel in conjunction with other sentencing requirements. The affirmative obligation of defense counsel to be aware of collateral consequenes of a plea is well established by Ramirez. At the time of Defendant’s plea, Moore had been filed, and it also included strong language stating that “there is little ques-tion that adequate pre-plea knowledge of the SORNA registration and notification consequences of a plea ought to be a part of criminal procedure.” 2004-NMCA-035, ¶ 26. At the hearing regarding Defendant’s motion to withdraw his plea, his attorney testified that it was standard practice to advise a client that he was pleading guilty to a sex offense and that he had failed to realize that Defendant’s offense was con-sidered a sex offense. From these factors, we conclude that counsel was aware of the need to discuss SORNA registration and failed in his obligation to do so. The rule in Edwards is not new and thus applies retroactively. 16 The State also argues that, even if Defendant suffered ineffective assistance

of counsel, he failed to show that it caused him to suffer prejudice. In short, he must show that there was a reasonable probabil-ity that he would have rejected the plea and proceeded to trial if he had been informed of the SORNA consequences. Edwards, 2007-NMCA-043, ¶ 34. Generally, a defen-dant must establish this through evidence beyond self-serving statements, includ-ing pre-conviction evidence, indicating a preference to either plead or go to trial and the strength of the evidence against him or her. Id. ¶ 35. However, these rules are not mechanical, and we may consider other factors, so long as “the focus is on whether there has been such a breakdown in the adversarial process as to undermine the fundamental fairness of the proceeding whose result is being challenged.” Id. ¶ 36 (quoting Barnett, 1998-NMCA-105, ¶ 32). 17 In the immigration arena, we have stated that we analyze prejudice differently than non-immigration-based ineffective assistance claims. State v. Favela, 2013-NMCA-102 , ¶ 21, 311 P.3d 1213, cert. granted, 2013-NMCERT-010, 313 P.3d 251. “Deportation can often be the harsh-est consequence of a non-citizen criminal defendant’s guilty plea, so that in many misdemeanor and low-level felony cases he or she is usually much more concerned about immigration consequences than about the term of imprisonment.” Paredez, 2004-NMSC-036, ¶ 18 (alterations, inter-nal quotation marks, and citation omitted). As noted above, we consider SORNA reg-istration, like immigration consequences, a harsh result of Defendant’s plea.18 The district court concluded that Defendant failed to meet his burden of showing that he would have gone to trial

rather than pleading guilty. At the hearing below on his motion to withdraw his plea, Defendant testified that, if he had known he was pleading guilty to a sex offense, “[he] wouldn’t have pled guilty to it. [He] would have fought it.” He suggested that he would have pled to a different charge, one that was not a sex offense. Defendant’s counsel testified: “I don’t believe that I or the prosecutor or [Defendant] had a realization, at the time he was entering the plea, that it was, in fact, covered by the sex offender registration statute.” We conclude from these factors that SORNA registra-tion adequately prejudiced Defendant to the extent that it constituted a breakdown in the fundamental fairness of the proceed-ings. III. CONCLUSION19 We hold that the rule stated in Edwards, regarding the requirement that counsel inform defendants of almost certain SORNA registration, was not a new rule of procedure and applies retro-actively. The district court erred in denying Defendant’s motion to withdraw his plea. We reverse the district court and permit Defendant to withdraw his plea agree-ment. Because the withdrawal of his plea will negate his convictions, Defendant will again face the need to resolve the charges against him whether through plea agree-ment, trial, or other resolution. We hereby remand the matter to the district court. 20 IT IS SO ORDERED.RODERICK T. KENNEDY, Chief Judge

WE CONCUR:M. MONICA ZAMORA, JudgeJ. MILES HANISEE, Judge



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STATE OF NEW MEXICO,Plaintiff-Appellee,

v.JOANN YAZZIE,

Defendant-AppellantDocket No. 32,476 (filed July 24, 2014)

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTYKAREN L. TOWNSEND, District Judge


CORINNA LASZLO-HENRYAssistant Attorney General


JORGE A. ALVARADOChief Public DefenderB. DOUGLAS WOOD III

Assistant Appellate DefenderTHE LAW OFFICES OF

THE PUBLIC DEFENDERSanta Fe, New Mexico

for Appellant

Opinion

Roderick T. Kennedy, Chief Judge1 Under the United States and New Mexico Constitutions, a police officer, before executing a traffic stop, must be aware of individualized, particularized, and articulable facts that support a belief that a violation is occurring in his presence. If the only facts are that the officer runs a license plate check to ascertain whether a vehicle is insured and the computer indicates no more than that the insurance status is “un-known,” the officer possesses insufficient facts from which to form a reasonable suspicion that would support a traffic stop. The evidence the State presented later to the district court that the Motor Vehicle Department’s (MVD) statistics could cor-relate unknown insurance status with being uninsured cannot serve as a proxy to supply evidence of the officer’s knowledge at the time he made his decision. The district court having held otherwise, we reverse.

I. BACKGROUND2 The facts in this case are simple and undisputed. Joann Yazzie (Defendant) was driving a vehicle on November 23, 2010, when Officer James Rempe entered its license plate number into the mobile data terminal (MDT) in his police car, which informed him that Defendant’s ve-hicle insurance status was “unknown.” He then executed a traffic stop. Defendant en-tered a conditional plea in the magistrate court for driving under the influence, reserving the question of whether her stop was based on reasonable suspicion and, upon her conviction, appealed her case de novo to the district court. In the district court, the State stipulated that “the only basis for the stop in this case was Of-ficer Rempe’s receiving information from [MVD] that . . . the status of the vehicle’s insurance was unknown.” In the district court, Defendant again moved to have her stop ruled unconstitutional because the officer lacked sufficient facts to justify seizing her.

3 It appears that the State’s strategy in this case was to establish grounds for prov-ing the meaning of “unknown” insurance status. At the beginning of the suppression hearing, the prosecutor stated that the State sought a witness from the MVD to testify about what “unknown” insurance status would mean in order to quell a recurring issue. The district court agreed and stated:

I think the State’s looking for this expert based on my previous de-cisions that insurance unknown just doesn’t cut it to me. I think it needs to be more, and I think the State’s following my previous directive that if they don’t have more, I’m going to be suppressing these stops.

The State called a witness from the MVD, who testified that there was a high likelihood that “unknown” insurance status may mean “uninsured.” From this evidence, the district court concluded that “[g]iven the 80% to 90% chance that the owner of a vehicle with an unknown insurance status has not yet obtained evidence of financial responsibility for the vehicle, it was reasonable for Officer Rempe to suspect that . . . Defendant did not have evidence of financial responsi-bility for her vehicle as she drove it on November 23, 2010.” Defendant does not contest the MVD witness’s opinion regarding the likelihood that unknown status correlates with uninsured vehicles, but asserts that the correlation is irrel-evant to the central question of whether the officer had reasonable suspicion at the time of the stop. No evidence was ever presented to the court as to what the officer suspected, or did not suspect, about “unknown” insurance status. The district court held the stop to be constitutionally valid, and Defendant appealed. II. DISCUSSION4 A rubric1 is useful in working through the puzzle that this case presents. Both the State and the district court descended into a logical error by focusing on the MVD testimony and not the specific stop. The proper question was not what the gen-eral likelihood might be of an uninsured

1 “Reports that say that something hasn’t happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.” Department of Defense News Brief-ing - Secretary Rumsfeld & Gen. Myers, Presenter: Secretary of Defense Donald H. Rumsfeld (February 12, 2002) available at http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2636 (last visited July 8, 2014).


http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2636

http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2636


http://www.nmcompcomm.us/Advance Opinionsmotorist being of unknown status on the officer’s computer, but only whether know-ing no more than Defendant’s unknown status at the time of the stop provided Of-ficer Rempe with a sufficiently reasonable suspicion for seizing Defendant. For the following reasons, we conclude that the district court lacked a basis in fact to find that the stop was constitutionally permis-sible.A. “Known Knowns”1. Standard of Review5 Our review of the denial of a mo-tion to suppress presents us with a mixed question of law and fact. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. We review a district court’s find-ings of fact under a substantial evidence standard. See Shearton Dev. Co. v. Town of Chilili Land Grant, 2003-NMCA-120, ¶ 32, 134 N.M. 444, 78 P.3d 525. “We view the facts in a manner most favorable to the prevailing party [as they may be supported by substantial evidence] and defer to the district court’s findings.” State v. Hubble, 2009-NMSC-014, ¶ 5, 146 N.M. 70, 206 P.3d 579 (internal quotation marks and citation omitted). We then review de novo the constitutional question of whether the stop was reasonable. State v. Gonzales, 2010-NMCA-023, ¶ 4, 147 N.M. 735, 228 P.3d 519. “Because the facts in this case are undisputed, we . . . determine whether the [district] court correctly applied the law to those facts.” State v. Duran, 2005-NMSC-034, ¶ 20, 138 N.M. 414, 120 P.3d 836, overruled on other grounds by State v. Leyva, 2011-NMSC-009, 149 N.M. 435, 250 P.3d 861.2. Standard for an Investigative Stop6 “Article II, Section 10, of the New Mexico Constitution and the Fourth Amendment to the United States Consti-tution control the validity of investigative stops.” State v. Anaya, 2008-NMCA-020, ¶ 6, 143 N.M. 431, 176 P.3d 1163. To the extent that Defendant argues that Article II, Section 10 provides greater protection than the United States Constitution from unwarranted governmental intrusions, we agree. State v. Garcia, 2009-NMSC-046, ¶ 29, 147 N.M. 134, 217 P.3d 1032 (holding that the basis for our expanded view is greater protection of personal privacy). “ ‘In the context of a non-pretextual traf-fic stop, we require that, to satisfy Article II, Section 10, a police officer must have reasonable suspicion of criminal activ-ity or probable cause that the traffic code has been violated.’ ” State v. Hicks, 2013-NMCA-056, ¶ 14, 300 P.3d 1183 (quoting

State v. Ochoa, 2009-NMCA-002, ¶ 25, 146 N.M. 32, 206 P.3d 143). Under applicable constitutional standards, we know that a traffic stop must be “ ‘justified at its incep-tion.’ ” State v. Reynolds, 1995-NMSC-008, ¶ 8, 119 N.M. 383, 890 P.2d 1315. That is to say, “[b]efore a police officer makes a traffic stop, he must have a[n objectively] reasonable suspicion [that the motorist is engaged in some form] of illegal activity.” Anaya, 2008-NMCA-020, ¶ 6; State v. Harbison, 2007-NMSC-016, ¶ 13, 141 N.M. 392, 156 P.3d 30 (requiring reasonable sus-picion at that moment); State v. Williams, 2006-NMCA-062, ¶ 23, 139 N.M. 578, 136 P.3d 579. The primary focus of our review concentrates on the facts that are known to the officer. Hubble, 2009-NMSC-014, ¶ 8; State v. Madsen, 2000-NMCA-050, ¶ 9, 129 N.M. 251, 5 P.3d 573. “We will find reasonable suspicion if the officer is aware of specific articulable facts, together with rational inferences from those facts, that, when judged objectively, would lead a rea-sonable person to believe criminal activity occurred or was occurring.” Hubble, 2009-NMSC-014, ¶ 8 (internal quotation marks and citation omitted). 7 “[T]he State has the burden to es-tablish reasonable suspicion to stop the motorist. If the State fails in its burden, the stop is unconstitutional.” State v. Gonza-les, 2011-NMSC-012, ¶ 12, 150 N.M. 74, 257 P.3d 894. We objectively consider the totality of the circumstances surrounding the stop in light of all the information possessed by the officer at the time of the stop. Williams, 2006-NMCA-062, ¶ 23; Cave v. Cooley, 1944-NMSC-050, ¶ 8, 48 N.M. 478, 152 P.2d 886 (justifying that an arrest “must be a judgment based on personal knowledge acquired at the time through the senses, or inferences properly to be drawn from the testimony of the senses” (internal quotation marks and citation omitted)). “An inference is not a supposition or a conjecture, but is a logical deduction from facts proved and guess work is not a substitute therefor.” Bolt v. Davis, 1962-NMSC-085, ¶ 30, 70 N.M. 449, 374 P.2d 648 (alteration, internal quotation marks, and citation omitted). The “inferences” our cases talk about are inferences made by the officer from presently known facts that would lead the officer to believe that criminal activity is afoot. State v. Pallor, 1996-NMCA-083, ¶ 12, 122 N.M. 232, 923 P.2d 599. The pur-pose of requiring reasonable suspicion “is to prevent and invalidate police conduct based on hunches, which are, by definition,

subjective.” Ochoa, 2009-NMCA-002, ¶ 25 (internal quotation marks and citation omitted). Reasonable suspicion requires a greater than minimal level of objective justification, “that is, something more than an inchoate and unparticularized suspicion[.]” State v. Funderburg, 2007-NMCA-021, ¶ 14, 141 N.M. 139, 151 P.3d 911, rev’d, 2008-NMSC-026, 144 N.M. 37, 183 P.3d 922. The United States Supreme Court held that stopping a vehicle to check license and registration is unreasonable absent an articulable and reasonable sus-picion that the driver is unlicensed, the vehicle is unregistered, or there is some other violation of the law. Delaware v. Prouse, 440 U.S. 648, 663 (1979). Stopping to ascertain insurance status is no different. See State v. Dixson, 633 S.E.2d 636, 638 (Ga. App. 2006) (holding that unknown status of insurance does not constitute reasonable suspicion for a traffic stop). 8 In this case, we determine whether the district court’s findings are supported by substantial evidence, and we further evaluate the sufficiency of the evidence to demonstrate whether, at the time of the stop, Officer Rempe had sufficient knowledge that Defendant was, at that time, committing a violation of the insur-ance statute. “When a case is assigned to a general calendar, the factual basis for the issues must be contained in the record of proceedings made below.” State v. Jensen, 1998-NMCA-034, ¶ 18, 124 N.M. 726, 955 P.2d 195. 3. Officer Rempe’s Basis for the Stop9 Owing to the stipulation of counsel and the lack of any testimony by Officer Rempe, we know that the officer’s sole basis for the traffic stop was the information on his MDT, indicating that the status of Defendant’s insurance on the vehicle was unknown. The officer also filed a prob-able cause statement with the criminal complaint in the magistrate court that states: “I ran a vehicles license plate . . . on my MDT. I stopped the vehicle because the insurance returned ‘unknown.’ I made contact with [Defendant].” The returned information known to the officer did not provide any specific articulable facts to support a suspicion that Defendant was committing a crime. Dixson, 633 S.E.2d at 638. The State relied on State v. Cande-laria, which permitted a stop based on an allowable inference that the owner of a car who has a suspended driver’s license will be driving that car. 2011-NMCA-001, ¶ 15, 149 N.M. 125, 245 P.3d 69. That scenario is distinct from this case, where unknown



http://www.nmcompcomm.us/Advance Opinionsinsurance status conveys no actionable information, yet serves as the sole basis for a stop. See City of Roswell v. Hudson, 2007-NMCA-034, ¶ 20, 141 N.M. 261, 154 P.3d 76 (holding that information that a license plate is not on file with the MVD fails to establish a reasonable suspicion to stop a motorist). 4. MVD Statistics10 We can see from the record that this case was preceded by many success-ful suppression motions by defendants in other cases regarding stops based on “unknown status” from which the State had concluded that it needed evidence from the MVD supporting the proposition that “unknown” equates with “uninsured.” The MVD employee’s testimony and the State’s Exhibit 1 both support the district court’s finding of a strong correlation between “unknown” and “uninsured.” We have previously stated that “ ‘[s]pecula-tion’ is the act of theorizing about a mat-ter in which evidence is not sufficient for certain knowledge.” Bufalino v. Safeway Stores, Inc., 1982-NMCA-127, ¶ 25, 98 N.M. 560, 650 P.2d 844. Even a strong correlation between “unknown” status and being uninsured is insufficient by itself to support a traffic stop because evidence must be particularized to the person who is stopped for a violation, and those facts must be articulated, rather than based solely on probability. We note that MVD has not chosen, in light of its statement of the probable correlation, to change “unknown” status to “uninsured” in the information it sends to officers’ MDTs in the field. E.g., State v. Baldwin, 712 P.2d 120, 123-24 (Or. App. 1985) (“[A] corre-lation between being [in a certain place], being armed[,] and possessing [drugs] . . . may be statistically or historically correct, but [a] defendant is an individual, not a statistic.”) An officer must point to facts related to the individual, not to general statistics, to justify an intrusion of this nature. “[The officer] points to no ‘specific and articulable facts’ showing that he had reason to fear for his safety from [the] defendant.”). The State was required to present information beyond general sta-tistics. It was required to present specific and articulable facts about Defendant that influenced Officer Rempe’s decision to pull Defendant over. B. “Known Unknowns”1. Defendant’s Insurance Status at the

Time of the Stop11 Our law is quite clear that “[b]efore a police officer makes a traffic stop, he

must have a reasonable suspicion of il-legal activity.” Anaya, 2008-NMCA-020, ¶ 6. We maintain that “information that is subsequently obtained cannot be relied upon to support the legality of a detention.” State v. Gutierrez, 2008-NMCA-015, ¶ 24, 143 N.M. 522, 177 P.3d 1096 (citing State v. Jason L., 2000-NMSC-018, ¶ 20, 129 N.M. 119, 2 P.3d 856.) Officer Rempe’s discovery of Defendant’s insurance status after the stop cannot justify the stop. We note a contrast between the State’s early statement in its brief that “Officer Rempe articulated facts[,] which, when viewed objectively, would lead a reasonable person to conclude that a violation of the Manda-tory Financial Responsibility Act (MFRA) was occurring,” and their argument that “Officer Rempe’s belief that Defendant’s vehicle was uninsured was objectively reasonable based on the evidence provided by the State’s MVD witness.” The first state-ment is demonstrably incorrect, and the second relies on information that neither appeared in any statement attributed to the officer nor appears to have existed at the time of the arrest. A chasm lies between the evidence presented of what the officer knew while sitting in his police car con-templating stopping Defendant, and what the district court came to know more than a year later. 12 No evidence in the record indicates any reason for Officer Rempe to check Defendant’s license plate in the first place, or whether the officer made any inferences from what he saw on his MDT that night. Again, we have previously held that infor-mation “that the license plate number on the car [is] not on file with the [MVD] fails to establish a reasonable suspicion” con-cerning a motorist. Hudson, 2007-NMCA-034, ¶ 20. Moreover, we note that the MVD evidence proffered by the State in court concerns a date range of October 5, 2011 to February 13, 2012, which, at its earliest, is two months after Defendant’s conviction in magistrate court. The record does not demonstrate a connection between the MVD testimony and Defendant’s actual insurance status at the time of the stop.2. Officer Rempe’s Knowledge of the

Meaning of “Unknown”13 The State cannot establish beyond a supposition that Officer Rempe’s ac-tual knowledge of what “unknown” meant “may have been based [on] his personal experience of the correlation between ‘unknown’ status and inability to produce proof of insurance.” The State’s argument is not supported by evidence in the record.

See Muse v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104 (“[A]rguments of counsel are not evidence.”). Similarly, the State’s argument, urging that “[t]he statistical probability . . . clearly warranted further investigation[,]” fails because no evidence indicates that the officer was aware of the statistics.14 The evidence fails to show that Of-ficer Rempe knew of any statistical prob-abilities concerning “unknown” insurance status. Because the State, owing to the par-ties’ stipulation, never presented evidence that the officer observed Defendant com-mit a traffic violation that caused him to stop her vehicle, or that he had any prior knowledge, training, or experience that “unknown” status generally correlated with a vehicle being uninsured, the State’s arguments fail. Any assumption that the statistics were meaningful to the officer was based on speculation and does not support a determination that his stop was reasonable. 15 We conclude that based on the lack of evidence in the record regarding Of-ficer Rempe’s basis for the stop, he had no articulable reason to believe Defendant had committed a crime. The officer’s stop of Defendant was not constitution-ally authorized. See Dixson, 633 S.E.2d at 638-39. To prove that Officer Rempe based his stop on a fact or rational infer-ence, the State relied on the information on the officer’s computer and only sup-ported by the MVD statistics. However, any significance of the “unknown” status to him is not demonstrated by the record and irrelevant. General arguments regard-ing what law enforcement generally may rely on ignores the issue of the officer’s understanding of the “unknown” status data at the time of the stop. Based on the record, it cannot be asserted that the officer associated any probability of an insurance violation with the word “unknown” on his MDT. The State has the burden to prove articulable, individualized, and particu-larized facts known to the officer. MVD’s general statistics fail to carry this burden for the State. The district court substituted the MVD’s statistics for evidence of Officer Rempe’s suspicions, and its conclusion is thus unsupported by substantial evidence.C. “Unknown Unknowns”16 This case still leaves unanswered whether any police officer knows enough by virtue of “unknown” insurance status to effect a valid arrest. But even if an of-ficer does know the MVD statistics indi-cating that 80% to 90% of all vehicles that



http://www.nmcompcomm.us/Advance Opinionsregister as “unknown” are uninsured, this still fails to provide objective individual-ized evidence regarding any individual vehicle and whether that particular ve-hicle is uninsured. The fact that MVD chooses “unknown” over “uninsured” in its printouts and data transmissions to officers demonstrates the limits of confi-dence required to effect a traffic stop. We decline in this case to accept the State’s invitation to hold that general statistical probabilities objectively establish par-ticularized suspicion. See State v. Gage R., 2010-NMCA-104, ¶ 19, 149 N.M. 14, 243 P.3d 453 (“[W]e conclude that the search of a group of students gathering at the ‘smoker’s corner,’ without reason to suspect that any particular student is in possession of contraband, is not con-

stitutionally sound.”). Absent evidence of any knowledge or reliance on Officer Rempe’s part on any significance of un-known status of Defendant’s insurance as reported to him on his MDT, the MVD evidence is irrelevant to whether the stop was constitutional. III. CONCLUSION17 Officer Rempe’s lack of knowledge of any facts particular to Defendant’s vehicle insurance decides this case. The evidence shows only that the officer knew that Defendant’s insurance status was “unknown” and that he did not possess additional facts or reasonable inferences to objectively supply reasonable suspicion for her seizure. Because that “unknown” status was the sole basis of the stop, the stop was not constitutionally valid. Furthermore,

even if evidence was presented that the officer was aware of the statistics estab-lishing a correlation between “unknown” insurance status and lack of insurance, such knowledge of general probabilities without more fails to provide the requi-site objective individualized evidence of lack of insurance that would support a traffic stop. We reverse the district court’s denial of Defendant’s motion to suppress evidence and remand this case for further proceedings in the district court consistent with this Opinion.18 IT IS SO ORDERED.RODERICK T. KENNEDY, Chief Judge

WE CONCUR:JAMES J. WECHSLER, JudgeTIMOTHY L. GARCIA, Judge






TIFFANY SOUTH, Plaintiff-Appellant,

v.POLICE CHIEF ISAAC LUJAN, POLICE CAPTAIN WILL DURAN, and MARY-ALICE BROGDON, in their individual capacities,

Defendants-AppelleesDocket No. 32,015 (filed August 11, 2014)

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTYLOUIS P. MCDONALD, District Judge

GEORGE T. GERANLAW OFFICE OF GEORGE GERAN


DAVID C. MIELKESONOSKY, CHAMBERS, SACHSE,

MIELKE & BROWNELL, LLPAlbuquerque, New Mexico

for Appellees

Opinion

Michael D. Bustamante, Judge1 Plaintiff-Appellant Tiffany South—a former officer with the Sandia Pueblo Police Department (Plaintiff ) filed a complaint for violation of the New Mexico Human Rights Act (NMHRA), retaliatory discharge, and tortious inference with contract against Defendants-Appellees Isaac Lujan, William Duran, and Mary-Alice Brogdon (collectively, Defendants) in their individual capacities. The district court granted Appellees’ motion to dismiss based on lack of jurisdiction. Because the record on appeal is insufficient to permit review, we reverse and remand for factual development on the issues relevant to state court jurisdiction.BACKGROUND2 Plaintiff, who had been an officer with the Sandia Pueblo Police Department (the Department), alleged that Defendants Lujan and Duran, the Chief and Captain of the Department, respectively, had sexually harassed her and that, together with Defendant Brogdon, the employee relations manager for Sandia Pueblo, had retaliated against her after she complained of the sexual harassment. She also main-tained that Defendants interfered with her employment contract with Sandia Pueblo “with the explicit motive of terminating [her employment] for false reasons[.]”3 Plaintiff is not Indian. Defendant Lu-jan is Indian and a member of the Pueblo.

Defendants Duran and Brogdon are nei-ther Indian nor members of the Pueblo. Sandia Pueblo is not named as a party in the complaint.4 Defendants moved for dismissal of the complaint, arguing that the NMHRA did not apply to the Pueblo and its employees and that, in any case, Plaintiff ’s claims were barred by the Pueblo’s sovereign immunity and, therefore, the district court lacked jurisdiction to hear the complaint. See Rule 1-012(B)(1), (2) NMRA. They also argued that the suit must be dismissed because the Pueblo is a necessary party to the suit which cannot be joined. See Rule 1-019 NMRA. After a hearing, the district court granted Defendants’ motion and dismissed the complaint with prejudice. Plaintiff ap-pealed. Additional facts are provided as pertinent to our discussion.DISCUSSION5 This case involves a suit by a non-Indian Plaintiff against one Indian and two non-Indian employees of the Department, in their individual capacities, for conduct that allegedly occurred both within and outside of Indian country. See 18 U.S.C. § 1151 (2012) (defining “Indian country” to include “all land within the limits of any Indian reservation under the jurisdic-tion of the United States Government”). Because our jurisprudence on state court jurisdiction over matters involving Indians or tribes frequently depends on factors such as the location or source of the under-lying transaction or occurrence, whether the parties are Indian or not, and the inter-

ests at stake, the overarching question pre-sented—does the state court have subject matter jurisdiction over these claims?—it-self depends on the answers to a number of components. See, e.g., Found. Reserve Ins. Co., Inc. v. Garcia, 1987-NMSC-024, ¶ 8, 105 N.M. 514, 734 P.2d 754 (relying on fact that the transaction giving rise to the claim occurred outside of the reserva-tion); State Sec., Inc. v. Anderson, 1973-NMSC-017, ¶ 14, 84 N.M. 629, 506 P.2d 786 (“In this case there is not a proprietary interest in land, one Indian is not suing another Indian and the transaction did not arise in Indian country.”); Alexander v. Cook, 1977-NMCA-069, ¶¶ 17-19, 90 N.M. 598, 566 P.2d 846 (holding that state court jurisdiction over a suit for damages between non-Indians for “business activi-ties” that occurred on Indian land did not infringe on tribal sovereignty). Here, these include, for instance, whether the conduct complained of occurred on the reserva-tion, whether the conduct complained of occurred within the scope of employment, whether the Pueblo is a necessary party, and to what extent the Pueblo has sought to regulate disputes between its employees when employees are sued in tort in their individual capacities. These questions are fact-intensive inquiries. See, e.g., Rivera v. N.M. Highway & Transp. Dep’t, 1993-NMCA-057, ¶ 6, 115 N.M. 562, 855 P.2d 136 (“Generally, whether an employee is acting in the course and scope of em-ployment is a question of fact.”); Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, ¶ 42, 132 N.M. 207, 46 P.3d 668 (“The determination of whether a particular nonparty should be joined under Rule 1-019 is heavily influenced by the facts and circumstances of each case.” (internal quotation marks and citation omitted)).6 The parties argued these issues below and reiterate them on appeal. In addition, they dispute whether the Pueblo’s sover-eign immunity applies to shield Defen-dants from suit in state court. However, because the district court neither made factual findings nor indicated the legal basis for its decision, there is no transcript of the hearing in the record, and the parties did not develop a factual record to support the district court’s ruling or adequately develop their arguments on appeal, we are unable to review whether the district court properly granted Defendants’ motion to dismiss.7 We begin by explaining our standard of review and why we do not accept as true the facts alleged in the complaint. When



http://www.nmcompcomm.us/Advance Opinionsconsidering motions to dismiss based on a failure to state a claim under Rule 1-012(B)(6) or lack of standing, we “accept as true all material allegations of the complaint and construe the complaint in favor of the complaining party.” Forest Guardians v. Powell, 2001-NMCA-028, ¶ 5, 130 N.M. 368, 24 P.3d 803 (lack of standing); Delfino v. Griffo, 2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917 (“In reviewing a district court’s decision to dismiss for failure to state a claim, we accept all well-pleaded factual allegations in the complaint as true and resolve all doubts in favor of sufficiency of the complaint.” (internal quotation marks and citation omitted)). Similarly, “[w]hen reviewing a district court’s grant of a motion [for judgment on the pleadings based on sovereign immu-nity], we accept as true the facts pleaded in the complaint, and we review de novo the district court’s application of the law to those facts.” Guzman v. Laguna Dev. Corp., 2009-NMCA-116, ¶ 16, 147 N.M. 244, 219 P.3d 12; see Rule 1-012(C).8 But this standard does not always apply when reviewing the district court’s ruling on a motion to dismiss for lack of subject matter jurisdiction under Rule 1-012(B)(1). The difference lies in the type of attack—facial or factual—mounted by the movant.

In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. [In contrast, in a factual attack,] a party may go beyond allegations contained in the complaint and challenge the facts upon which subject mat-ter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a dis-trict court may not presume the truthfulness of the complaint’s factual allegations.

Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995) (citations omitted); see Hamaatsa, Inc. v. Pueblo of San Felipe, 2013-NMCA-094, ¶ 9, 310 P.3d 631, cert. granted, 2013-NMCERT-009, 311 P.3d 452 (“As conceded by the Pueblo in its argument to

the district court and in its brief in chief on appeal, the Pueblo’s purely facial challenge to jurisdiction compels us to accept as true all material allegations of the complaint and also to construe the complaint in favor of the complaining party.”); see also Genberg v. Porter, 935 F. Supp. 2d 1094, 1102 (D. Colo. 2013), aff’d in part, appeal dismissed in part, No. 13-1140, 2014 WL 1876246 (10th Cir. May 12, 2014) (“When a party moves to dismiss for lack of subject matter jurisdic-tion pursuant to Fed. R. Civ. P. 12(b)(1), the attack is either a facial attack to the allega-tions of the complaint or a factual attack.”) This rule is based on the fundamental nature of jurisdictional questions: “Because at issue in a factual [1-012(B)(1)] motion is the [district] court’s jurisdiction—its very power to hear the case—there is substantial authority that the [district] court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990).9 When the challenge is factual, “[a] court has wide discretion to allow affidavits, other documents, and a limited evidentiary hear-ing to resolve disputed jurisdictional facts under Rule [1-012(B)(1)]. In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a . . . motion [for summary judgment].” Holt, 46 F.3d at 1003 (citations omitted). “However, a court is required to convert a Rule [1-012(B)(1)] motion to dismiss into a Rule [1-012(B)(6)] motion or a . . . sum-mary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case.” Id.10 Here, Defendants challenge several factual allegations in the complaint that bear on subject matter jurisdiction, such as whether the alleged conduct was in Defendants’ scope of employment and the location of the alleged conduct, and thus their attack is a factual one. We do not, therefore, presume the truthfulness of the complaint and instead rely on factual findings by the district court pertaining to subject matter jurisdiction.11 Where factual determinations are essential to a district court’s ruling but are

inadequately developed for appeal, this Court may remand for entry of findings of fact because “[a]s an appellate court, we will not originally determine the questions of fact.” Guidry v. Petty Concrete Co., 1967-NMSC-048, ¶ 13, 77 N.M. 531, 424 P.2d 806. For example, in In re Begay, this Court considered whether the district court erred in denying a motion to dismiss based on lack of subject matter jurisdiction. 1988-NMCA-081, ¶ 14, 107 N.M. 810, 765 P.2d 1178. After determining that the question of jurisdiction was “dependent upon reso-lution of factual questions” and that the district court did not enter any relevant finding of fact, this Court remanded for entry of findings. Id. ¶¶ 14, 22. Although it “recognize[d] that findings of fact and conclusions of law are not required when ruling on a motion[,]” see Rule 1-052(A) NMRA, this Court nevertheless stated that express findings are “preferable” when the district court’s ruling rests on resolution of facts. In re Begay, 1988-NMCA-081, ¶ 17. It concluded, “In the absence of factual findings or some statement by the [district] court explaining the basis for its decision (including any factual determinations sup-porting the decision), a reviewing court is unable to decide an appeal without great difficulty.” Id.12 Here, there are two important issues that are inadequately developed for review. The first is whether Defendants’ alleged conduct occurred within the scope of employment by the Pueblo.1 This question is important to the ultimate determination of jurisdiction because it goes to whether state court jurisdiction would infringe on the Pueblo’s sovereignty, as well as to whether the Pueblo’s sovereign immunity prevents suit against Defendants. See, e.g., Evans v. McKay, 869 F.2d 1341, 1348 n.9 (9th Cir. 1989) (“While officials and agents of an Indian tribe do not have the same im-munity as the tribe itself, tribal immunity nevertheless extends to individual tribal officials while acting in their representa-tive capacity and within the scope of their authority.” (internal quotation marks and citations omitted)); Rodriguez v. Wong, 82 P.3d 263, 266-267 (Wash. Ct. App. 2004)

1 We note that “[t]he general rule is that sexual harassment by a supervisor is not conduct within the scope of employment.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 757 (1998); see Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 29, 135 N.M. 539, 91 P.3d 58. As we understand Plaintiff ’s briefing (although it is far from clear), Plaintiff appears to rely on this principle in support of her position that the NMHRA permits suits against individuals. It is also unclear from the briefing whether Plaintiff also argues that Defendants are not subject to the Pueblo’s sovereign immunity by virtue of this rule. In either case, we decline to consider undeveloped arguments and make no statement as to the applicability of Ellerth or Ocana to the present matter. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a party’s] arguments might be.”).



http://www.nmcompcomm.us/Advance Opinions(relying in part on the fact that the com-plaint alleged conduct within the scope of employment to hold that state court jurisdiction would infringe on the tribe’s sovereignty). It is also relevant to whether the Pueblo is a necessary party, since it bears on whether the Pueblo has an inter-est in the outcome of the suit. See Srader v. Verant, 1998-NMSC-025, ¶ 22, 125 N.M. 521, 964 P.2d 82 (“Courts demonstrate a willingness to bring in an absent person whenever there exists a reasonable pos-sibility that the person’s interests will be affected by the conclusion of an action to which he has not been made a party.”).13 Our review of the scope of employ-ment issue is hindered on several fronts. First, it is unclear from Plaintiff ’s briefs and complaint whether she alleges that Defendants acted outside the scope of their respective authority or not. For instance, she states, “[t]he claims involved . . . arise out of the employment of each of the par-ties by the Pueblo.” Elsewhere, however, she makes a statement directly to the con-trary, that she “pled [her] claims against [Defendants] acting as individuals acting outside of the scope of their employment.” She repeatedly refers to the supervisory nature of Defendants’ positions in the briefs and complaint. The rest of the brief-ing sheds little light on Plaintiff ’s position. For instance, Plaintiff appears to acknowl-edge a “majority rule” that “[u]sually the distinction between immune employees and non-immune employees is that tribal officials acting in their official capacity and within their scope of authority enjoy the immunity of their tribe” but then appears to implicitly assume that Defendants were acting in the scope of employment and argues that, notwithstanding that rule, immunity applies only to tribe employees “who can officially speak for the tribe” and that Defendants here did not have that power or, alternatively, that a scope of employment analysis has no relevance to claims of discrimination. In the complaint, Plaintiff states that the complained of “be-havior [wa]s plead, alternatively, as within and without the scope of employment[.]”14 More importantly given the burden of proof, Defendants’ answer brief does no better in assisting the Court to resolve this issue. See State v. Begay, 1987-NMCA-025, ¶ 6, 105 N.M. 498, 734 P.2d 278 (“Dem-onstrating a lack of jurisdiction is [the]

defendant’s burden.”). Defendants argue that “each [Defendant] was employed by the Pueblo in a managerial capacity and that the first two were acting in that capac-ity when . . . Plaintiff [was] discharged.”)2 They repeat this assertion several times. They do not, however, direct us to anything in the record supporting it or that would permit us to infer that the district court resolved the question one way or the other. See In re Application of Metro. Invs., Inc., 1990-NMCA-070, ¶ 15, 110 N.M. 436, 796 P.2d 1132 (“[A]rguments of counsel are not evidence.”). Since the district court en-tered no findings on this issue, it remains unresolved. See Guidry, 1967-NMSC-048, ¶ 13 (stating resolution of factual disputes is not the role of this Court).15 The second issue is whether state court jurisdiction would infringe on the Pueblo’s sovereignty under the facts of this case. This question derives from Williams v. Lee, in which the Supreme Court stated that the primary inquiry when determin-ing whether a state court has jurisdiction over a matter involving a non-Indian and an Indian is “whether the state action in-fringed on the right of reservation Indians to make their own laws and be ruled by them.” 358 U.S. 217, 220 (1959); see State ex rel. Dep’t of Human Servs. v. Jojola, 1983-NMSC-028, ¶ 8, 99 N.M. 500, 660 P.2d 590 (“This test is principally applicable in situations involving a non-Indian party.”). The so-called “infringement test” set out in Williams “was designed to resolve [the] conflict [that occurs when both a state and a tribe may assert jurisdiction] by providing that the [s]tate could protect its interest up to the point where tribal self-government would be affected.” Mc-Clanahan v. State Tax Comm’n of Arizona, 411 U.S. 164, 179 (1973); see Hinkle v. Abeita, 2012-NMCA-074, ¶ 22, 283 P.3d 877 (reaffirming New Mexico’s reliance on the infringement test). Under that test, courts consider “(1) whether the parties are Indians or non-Indians; (2) whether the cause of action arose within the Indian reservation; and (3) the nature of the interest to be protected.” Hartley v. Baca, 1981-NMCA-080, ¶ 9, 97 N.M. 441, 640 P.2d 941. It is clear that in the context of this case, the answers to these ques-tions are somewhat thorny, because the suit involves allegations by a non-Indian against both Indians and non-Indians, for

conduct alleged to have occurred both on and off the reservation, either within or outside of the scope of employment. Given this posture, the interests of the parties, as well as those of the State of New Mexico and the Pueblo, are also not readily ap-parent, especially in light of the fact that Defendants are named in their individual capacities. Thus, the answers to factual questions as to the location of the alleged conduct, whether the conduct was within the scope of employment, whether the Pueblo is a necessary party, and so forth are essential to review of this issue.16 In addition, Defendants fail to ex-plain how state court jurisdiction would infringe on the Pueblo’s sovereignty in this case. Defendants assert that “Plaintiff[’]s claims here go to the heart of the Pueblo’s interest in operating a vital department of tribal government and in having and enforcing its own employment laws and policies.” They contend that “[a] more direct threat to a tribe’s self-governing powers . . . can hardly be imagined.” If the Pueblo was named as a defendant, this ar-gument would hold more sway. However, Defendants fail to fully develop a factual basis for the infringement test. Defendants’ application of the infringement test rests on their assertions that the suit involves an Indian and that “the alleged actions and inactions giving rise to Plaintiff[’]s claims arose entirely on the Pueblo.” The first assertion is not contested by Plain-tiff, but neither does it address the two non-Indian Defendants. Plaintiff contests the second assertion, as discussed above. Thus, Defendants’ analysis of the first two prongs of the infringement test is either incomplete or rests on disputed facts that the district court did not resolve. As to the third prong, other than counsel’s asser-tions, Defendants do not explain how a suit against the Defendants in their individual capacities under the NMHRA3 and com-mon law torts would have an impact on the Pueblo’s sovereignty. Even if we assumed that the state court does not have jurisdic-tion over the Indian defendant because he has an interest in being heard in Pueblo court under the laws of the Pueblo, see Hinkle, 2012-NMCA-074, ¶ 5 (stating that an Indian defendant had an interest in be-ing heard in the tribal court), Defendants do not address how state court jurisdiction over the two non-Indian tribe employees,

2 Defendants maintain that Defendant Brogdon was no longer employed by the Tribe when Plaintiff was discharged. 3 Plaintiff appears to agree that her NMHRA claim does not apply to Defendant Lujan on the basis that he is not subject to state law.



http://www.nmcompcomm.us/Advance Opinionsas individuals, infringes on tribal author-ity, especially if they were acting outside their scope of employment. See Alexander, 1977-NMCA-069, ¶ 17 (“The resolution of [a] dispute [between non-Indians for damages] by a New Mexico court does not infringe on Indian government any more than state court jurisdiction over crimes between non-Indians that arise on Indian land.”); Cordova v. Holwegner, 971 P.2d 531, 538 (Wash. Ct. App. 1999) (“[W]e find nothing in the record indicating that the tribe has exclusive . . . jurisdiction over this garden-variety tort litigation between non[-]members that arose . . . on the closed area of the reservation.”); Cuprak v. Sun Int’l Hotels Ltd., No. CV 970112045S, 1997 WL 663299, at *4 (Conn. Super. Ct. Oct. 9, 1997) (holding no tribal infringement in state court jurisdiction over a suit between a non-Indian corporation operating a casino for the Mohegan tribe and a non-Indian employee of the corporation and stating that, although the alleged conduct occurred both on and off the reservation and the tribe had an economic interest, “the [t]ribe’s interest is significantly weak-ened since the tribe is neither a party to this action nor are tribal assets at stake. On the other hand, the state of Connecticut has a real interest in adjudicating disputes that arise between its citizens.”); but see Ro-driguez, 82 P.3d at 267 (holding that state court jurisdiction impermissibly infringed on tribal sovereignty where the tribe had “exercised its jurisdiction to develop its own non-discrimination . . . policies” and the plaintiff was a non-Indian employee of the tribe).4

17 We conlude that additional develop-ment of the facts relevant to the infringe-

ment test and the extent of infringement posed under the specific posture of this case is necessary. We are aware that some New Mexico cases have been decided on the basis of a party’s failure to explain how tribal governance was impinged by state court jurisdiction. See, e.g., Tempest Recov-ery Servs., Inc. v. Belone, 2003-NMSC-019, ¶ 15, 134 N.M. 133, 74 P.3d 67 (“New Mex-ico can exercise concurrent jurisdiction over the breach of contract action because we cannot see, and [the defendant] does not demonstrate, how concurrent juris-diction would impinge upon tribal sover-eignty in the present context.”); Wacondo v. Concha, 1994-NMCA-040, ¶ 13, 117 N.M. 530, 873 P.2d 276 (“The [d]efendant has failed to show how recognizing concur-rent jurisdiction in tribal and state courts would impinge upon tribal sovereignty in the present context.”); G. M. Shupe, Inc. v. Bureau of Revenue, 1976-NMCA-040, ¶ 6, 89 N.M. 265, 550 P.2d 277 (“In the case before us the taxpayer has failed to point to any specific way in which the tribe will be affected, relying instead on a general invocation of sovereignty. . . . There is no indication from the record that the [p]ue-blo will sustain any direct effects as a result of the tax, and therefore no conflict with tri[b]al sovereignty is shown.”). But we decline to reverse on this basis alone given the near total lack of factual development below. We therefore remand for additional proceedings consistent with this Opinion.18 Finally, to the extent Defendants maintain that Plaintiff ’s suit is “in reality against the Pueblo” in support of their position that the Pueblo’s sovereign im-munity applies to bar suit, this question too hinges on resolution of facts, such

as whether the conduct was within the scope of employment, whether the dam-ages requested implicate the Pueblo, and whether a judgment would have an impact on Pueblo governance. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984) (“[A] suit is against the sover-eign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act.”), superseded by statute as stated in Joshua B. v. New Trier Twp. High Sch. Dist., 770 F. Supp. 431 (N.D. Ill. 1991) (internal quotation marks and cita-tion omitted). The facts related to whether the Pueblo is the real party in interest are also pertinent to whether the Pueblo is a necessary party and to the third prong of the infringement test. Because the record provides no resolution of the facts behind these questions, we are unable to review this argument. See Guidry, 1967-NMSC-048, ¶ 13.CONCLUSION19 There being no factual basis for the district court’s ruling in the record, we reverse and remand to the district court for further proceedings consistent with this Opinion.20 IT IS SO ORDERED.MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:MICHAEL E. VIGIL, JudgeTIMOTHY L. GARCIA, Judge

4 We note that the defendants in Rodriguez argued that even though the defendants were named as individuals, the suit was really against the tribe, 82 P.3d at 265, and that, unlike here, the court permitted the tribe to appear as amicus curiae, id., and the complaint alleged only conduct that occurred in the scope of employment. Id. at 266.







STATE OF NEW MEXICO, Plaintiff-Appellee,

v.BOBACK SABEERIN,

Defendant-AppellantDocket Nos. 31,412 and 31,895 (consolidated) (filed August 11, 2014)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYJACQUELINE D. FLORES and KENNETH H. MARTINEZ, District Judges


MARGARET MCLEANAssistant Attorney General


JORGE A. ALVARADOChief Public Defender

MARY BARKETAssistant Appellate Defender


Opinion

M. Monica Zamora, Judge1 The issues in this appeal stem from two trials in which Defendant Boback Sabeerin was convicted of crimes related to his involvement in a vehicle identification number (VIN)-switching operation. In the first trial, Court of Appeals No. 31,412, Defendant was tried together with his co-conspirator, Anjum Tahir (Tahir). In the second trial, Court of Appeals No. 31,895, Defendant was tried alone. The two trials generated two appeals that we consolidate into this Opinion.2 Defendant makes a number of argu-ments in support of reversal. We hold that Defendant’s motions to suppress in both No. 31,895 and in No. 31,412 should have been granted. The affidavit in sup-port of a search warrant for Defendant’s place of business at 112 General Arnold in Albuquerque, New Mexico, failed to establish probable cause as required by the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. As a result, we reverse.BACKGROUND3 The investigation that led to the charges and subsequent convictions at issue in these appeals began when Tahir was arrested for attempting to steal an

automobile. When Tahir was arrested, he was driving an automobile registered in his name, but bearing the VIN of a different automobile—one that had been purchased by Tahir at an insurance auction as a “com-plete burn and totaled” vehicle. Detective Timothy Fassler of the Albuquerque Police Department’s auto theft unit learned that the true VIN of the vehicle that Tahir was driving had been reported stolen two months before Tahir’s arrest. Detective Fassler’s further investigation revealed that Tahir had purchased a large number of totaled vehicles at auction.4 Having received a tip that Tahir “did business” at a combined structure located at 108 and 112 Rhode Island (the Rhode Island property) in Albuquerque, Detec-tive Fassler started surveillance at that property. From his surveillance, Detec-tive Fassler concluded that Tahir had two vehicles—one that Detective Fassler concluded must have been stolen and its VIN altered and another of the same make, purchased at auction, that provided the VIN for its stolen counterpart. A search warrant was issued for the Rhode Island property on August 19, 2009, at 2:13 p.m., and a search confirmed the factual basis of Detective Fassler’s search warrant affidavit and revealed other stolen and VIN-altered vehicles. During his investigation into Ta-hir’s activities, Detective Fassler “learned” that Tahir also “did business” at 112 Gen-

eral Arnold (the General Arnold property) in Albuquerque, so he sent a unit to watch that property. Tahir was seen there and taken into custody. Because Detective Fassler observed vehicles at the General Arnold property which he described as “suspicious,” he sought a search warrant for that property as well.5 On August 19, 2009, at 4:40 p.m., a search warrant was issued for the General Arnold property, and detectives proceeded to search the property. Defendant, the lessee of the property, arrived and agreed to speak with Detective Fassler. Detec-tive Fassler read Defendant his Miranda rights, interviewed Defendant about the stolen and VIN-switched vehicles on his property, and Defendant gave a statement implicating Tahir and himself in a car theft and VIN-switching operation. Further, a search of the General Arnold property revealed a number of stolen vehicles, as well as evidence of a car theft and VIN-switching operation.6 On October 1, 2009, Defendant was indicted in No. 31,412. Similar charges were filed against Tahir, and the cases were joined. A jury trial was held and Defendant was found guilty. Based on the same investigation that led to the charges in No. 31,412, Defendant was indicted in No. 31,895. A jury trial was also held in that case and Defendant was found guilty. Defendant appeals from his convictions in both cases. Because we hold that Defen-dant’s motions to suppress should have been granted, and reverse on that basis, we do not reach his remaining arguments.The Search Warrant Affidavit Did Not Establish Probable Cause7 Defendant argues that the district court erred in denying his motions to sup-press the evidence obtained as a result of the search of the General Arnold property. Defendant contends that the affidavit for the search warrant did not provide suf-ficient probable cause or specificity to support issuance of the search warrant, thereby rendering the search warrant invalid. Defendant attacks the affidavit for the search warrant on three bases. He argues that improper hearsay from an unknown source led the affiant, Detec-tive Fassler, to believe that Tahir “also did business at 112 General Arnold.” He also argues that Detective Fassler’s “assertion that there were ‘several suspicious vehicles’ at” the General Arnold property was in-sufficient to “establish probable cause to believe that evidence of criminal activity would be found there.” He argues further



http://www.nmcompcomm.us/Advance Opinionsthat the search warrant affidavit was too broad in its description of the parameters of the search. We agree with all three argu-ments.Probable Cause8 “The Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution both require probable cause to believe that a crime is occurring or seizable evidence exists at a particular location before a search warrant may issue.” State v. Wil-liamson, 2009-NMSC-039, ¶ 14, 146 N.M. 488, 212 P.3d 376 (alterations, internal quotation marks, and citation omitted). In McDonald v. United States, 335 U.S. 451, 455 (1948), Justice William O. Douglas explained the importance of the warrant requirement:

We are not dealing with for-malities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a[n issuing judge] between the citizen and the po-lice. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law.

“Probable cause to search a specific lo-cation exists when there are reasonable grounds to believe that a crime has been committed in that place, or that evidence of a crime will be found there.” State v. Evans, 2009-NMSC-027, ¶ 10, 146 N.M. 319, 210 P.3d 216.9 A search warrant may only issue “on a sworn written statement of the facts showing probable cause for issuing the warrant.” Rule 5-211(A)(4) NMRA. An affidavit in support of a search warrant “must contain sufficient facts to enable the issuing [judge] independently to pass judgment on the existence of probable cause.” Williamson, 2009-NMSC-039, ¶ 30 (internal quotation marks and citation omitted); see also State v. Knight, 2000-NMCA-016, ¶ 15, 128 N.M. 591, 995 P.2d 1033 (“Affidavits supporting search war-rants must be sufficiently detailed so that the analyzing court can make a probable cause determination.”), holding limited by Williamson, 2009-NMSC-039, ¶ 29; see also State v. Gonzales, 2003-NMCA-008, ¶ 12, 133 N.M. 158, 61 P.3d 867 (stating that probable cause to issue a warrant requires a factual showing “that there is a reasonable

probability that evidence of a crime will be found in the place to be searched”), holding limited by Williamson, 2009-NMSC-039, ¶ 29.10 Detailed search warrant affidavits “must show: (1) that the items sought to be seized are evidence of a crime; and (2) that the criminal evidence sought is located at the place to be searched.” Evans, 2009-NMSC-027, ¶ 11 (internal quotation marks and citation omitted). Additionally, search and seizure is only lawful where the search warrant affidavit sets forth a fac-tual basis establishing “a sufficient nexus between (1) the criminal activity, and (2) the things to be seized, and (3) the place to be searched.” State v. Gurule, 2013-NMSC-025, ¶ 15, 303 P.3d 838 (internal quotation marks and citation omitted).11 There is no bright-line test for determining probable cause. Evans, 2009-NMSC-027, ¶ 11. Probable cause does not have to be based on absolute factual certainty, but it must be based on “more than a suspicion or possibility.” Id. (inter-nal quotation marks and citation omit-ted). “[A] mere suspicion that the objects in question are connected with criminal activity will not suffice.” Gurule, 2013-NMSC-025, ¶ 14 (citing 2 Wayne LaFave, et. al., Search and Seizure: A Treatise on the Fourth Amendment § 3.7(d), at 414 (5th ed. 2012)); see also Nathanson v. United States, 290 U.S. 41, 47 (1933) (finding that a search warrant was improperly issued where the sworn affidavit was insufficient where it contained a mere affirmance of suspicion or belief by the affiant without setting forth the supporting facts or cir-cumstances).12 “ ‘[P]robable cause’ shall be based upon substantial evidence.” Rule 5-211(E); see also State v. Haidle, 2012-NMSC-033, ¶ 11, 285 P.3d 668 (same). “[T]he substantial basis standard of review is more deferen-tial than the de novo review applied to questions of law, but less deferential than the substantial evidence standard applied to questions of fact.” Williamson, 2009-NMSC-039, ¶ 30. “This standard, however, does not preclude the reviewing court from conducting a meaningful analysis of whether the search warrant was supported by probable cause, but rather precludes the reviewing court from substituting its judgment for that of the issuing judge[.]” Gurule, 2013-NMSC-025, ¶ 16 (internal quotation marks and citation omitted). Hence, “if the factual basis for the war-rant is sufficiently detailed in the search warrant affidavit and the issuing court

has found probable cause, the reviewing courts should not invalidate the warrant by interpreting the affidavit in a hyper-technical, rather than a commonsense, manner.” Williamson, 2009-NMSC-039, ¶ 30 (alteration, internal quotation marks, and citation omitted).13 Any information that was not pro-vided to the issuing judge at the time the search warrant affidavit and warrant were presented to him cannot be considered by the reviewing court in assessing the validity of the warrant. “[I]n evaluating a probable cause determination, the review-ing court must focus on the issuing judge’s determination regarding the informa-tion contained in the four corners of the [search warrant] affidavit.” Gurule, 2013-NMSC-025, ¶ 17; see also Williamson, 2009-NMSC-039, ¶ 31 (noting that the reviewing court must consider only the in-formation contained within “the four cor-ners of the search warrant affidavit,” as well as the affidavit as a whole). “All direct and circumstantial evidence alleged, as well as all reasonable inferences to be drawn from those allegations, should be considered.” State v. Snedeker, 1982-NMSC-085, ¶ 24, 99 N.M. 286, 657 P.2d 613. As the review-ing court, we are required to give deference to the issuing court’s determination of probable cause and should not substitute our judgment for that court. Id. ¶ 22. Our analysis is therefore focused at the time the affidavit was presented to the issuing judge and with only the information contained within the affidavit at that time.The Search Warrant Affidavit’s Content14 On August 19, 2009, Detective Fassler obtained two search warrants. First, he obtained a warrant to search the Rhode Island property, which he had con-nected to Tahir through his investigation and his surveillance of the Rhode Island property. The affidavit in support of the Rhode Island property warrant explains that police began investigating Tahir when he was apprehended for auto theft. The search warrant affidavit goes on to explain that at the time Tahir was arrested, he was driving a stolen truck that had been VIN-switched with a similar truck which had been totaled and sold to Tahir at an auction in Arizona.15 The search warrant affidavit de-tails Detective Fassler’s subsequent in-vestigation into Tahir’s VIN-switching operation, including internet searches revealing several totaled vehicles bought at auction and a tip that Tahir was doing business at the Rhode Island property.



http://www.nmcompcomm.us/Advance OpinionsIn the search warrant affidavit, Detective Fassler describes how, after receiving a tip regarding the Rhode Island property, he began surveillance there which revealed two Hummer vehicles; one red totaled Hummer SUV that Tahir had purchased at auction, and a second blue Hummer truck, which was registered to Tahir us-ing the totaled red Hummer SUV’s VIN. Based on Tahir’s arrest for auto theft, the tip that Tahir was doing business at the Rhode Island property, and the dis-covery of the apparently VIN-switched Hummers at the Rhode Island property, Detective Fassler obtained the Rhode Island property search warrant.16 After executing the Rhode Island property search warrant and confirming the presence of stolen and VIN-switched vehicles there, Detective Fassler sought a search warrant for the General Arnold property. The facts in the search warrant affidavit supporting the search warrant ap-plication for the General Arnold property appear to have been copied directly from the Rhode Island property search war-rant affidavit. The information is identical except for the description of the General Arnold property, the sentence identifying and describing the vehicles visible through the fence, and three sentences added at the end of the affidavit. As a result, the General Arnold property search warrant affidavit contains all of the detailed factual information which was used to establish probable cause to search the Rhode Island property, but relatively few facts related to the General Arnold property. The only additional facts pertaining to the General Arnold property are:

There are numerous vehicles vis-ible through the fence that have been, or are being dismantled. Also cars with no damage at all are visible.. . . .During the investigation [into Tahir’s suspected criminal activ-ity at the Rhode Island property], [Detective Fassler] learned that . . . Tahir also did business at 112 General Arnold. . . . [Detective Fassler] sent a unit to watch that [property] and [Tahir] was taken into custody walking around that business. Several suspicious ve-hicles can also be seen on that lot.

We must determine whether this language, within the four corners of the affidavit for the General Arnold property, provides sufficient facts upon which to conclude

that there was a reasonable probability connecting Tahir’s criminal activity at the Rhode Island property to the General Arnold property. We conclude that it does not.17 The State argues that against the backdrop of the investigation and search of the Rhode Island property, the informa-tion leading police to the General Arnold property, Tahir’s presence there, and the presence of “suspicious vehicles” on the premises, collectively support an inference that further evidence of Tahir’s auto theft and VIN-switching operation would be found at the General Arnold property. We disagree.18 The question before us is whether there are sufficient underlying circum-stances in the General Arnold property search warrant affidavit from which the issuing judge could conclude that the information learned by Detective Fassler, no matter the source, was credible or reli-able. The General Arnold property search warrant affidavit does not contain detailed facts that support such an inference. Cf. State v. Dietrich, 2009-NMCA-031, ¶¶ 14, 23, 145 N.M. 733, 204 P.3d 748 (holding that the search warrant affidavit contained sufficient information regarding the inves-tigating detective’s sources of information, including information from informants and from investigation to support a prob-able cause determination). While we understand that during the course of his investigation of the Rhode Island property Detective Fassler learned that Tahir did business at the General Arnold property, the affidavit is completely silent regarding the source and substance of such informa-tion. Detective Fassler does not specify, within the affidavit, how he learned of this information, nor did he explain the content of the information learned. More questions have been raised than answers have been provided. Was this information such that Detective Fassler could provide as first-hand knowledge? Was this infor-mation something he was told by another person, did he get it from documentation or other type of evidence that led him to determine that Tahir was engaging in the same criminal activity at both locations? It is unclear whether the information was obtained through a tip, as Defendant sug-gests, or whether it was obtained as a result of Detective Fassler’s investigation. The search warrant affidavit does not indicate whether police conducted any investiga-tion into a possible VIN-switching opera-tion at the General Arnold property. Cf.

State v. Trujillo, 2011-NMSC-040, ¶ 28, 150 N.M. 721, 266 P.3d 1 (holding that details of the police investigation contained in the search warrant affidavit were sufficient to establish a factual basis for the probable cause determination).19 It is a concern that we cannot determine whether the source of this information learned by Detective Fassler is reliable or credible. See Rule 5-211(E) (stating there must be “a substantial basis for believing the source of the hearsay to be credible and . . . that there is a factual basis for the information furnished”); see also State v. Cordova, 1989-NMSC-083, ¶ 17, 109 N.M. 211, 784 P.2d 30 (holding that a two-prong test for evaluating whether hearsay information contained in an af-fidavit for search warrant is sufficient to establish probable cause under the New Mexico Constitution). There is insufficient information before the issuing judge to determine whether the substance or source of Detective Fassler’s information is cred-ible or reliable. There is also insufficient information before the issuing judge to determine whether the circumstances by which Detective Fassler, or his source, obtained this information, demonstrated the probability that the criminal activity taking place at the Rhode Island property was also taking place at the General Arnold property.20 It is also necessary to address whether there are sufficient underlying circumstances in the search warrant af-fidavit from which the issuing judge could conclude that the “suspicious” vehicles were reasonable grounds to believe that a crime had been committed at the Gen-eral Arnold property or that evidence of a crime would be found there. Evans, 2009-NMSC-027, ¶ 10. The search warrant affi-davit states that “suspicious vehicles” were observed on the premises. In describing the property, it does not explain why the vehicles were suspicious, other than to say that some of the vehicles looked like they were being dismantled and some did not. Cf. Williamson, 2009-NMSC-039, ¶ 32 (upholding a search warrant because the facts describing a suspicious package were sufficiently detailed to support the issuing court’s determination of probable cause).21 Additionally, we note that where, as here, the facts provided in the search warrant affidavit only established conduct consistent with lawful activity, our inquiry should be “particularly exacting.” State v. Nyce, 2006-NMSC-026, ¶ 14, 139 N.M. 647, 137 P.3d 587, limited on other grounds



http://www.nmcompcomm.us/Advance Opinionsby Williamson, 2009-NMSC-039, ¶ 29. See Nyce, 2006-NMSC-026, ¶¶ 13-14 (holding that the purchase of tincture of iodine and hydrogen peroxide at multiple stores in a hurried manner is equally consistent with lawful activity and alone does not establish probable cause); State v. Anderson, 1988-NMCA-033, ¶ 16, 107 N.M. 165, 754 P.2d 542 (holding that facts consistent with a drug courier profile are insufficient in themselves to establish probable cause, because they “are generally descriptive of hundreds of innocent persons traveling through New Mexico on the interstate every day”).22 The Nyce case presents an analogous situation where the observation of suspi-cious activity was insufficient to establish that it was reasonably probable that there was criminal activity occurring at the loca-tion identified. 2006-NMSC-026. In Nyce, the defendant purchased multiple items at different stores. These items were ingredi-ents used to make methamphetamine, but could also be used for legal purposes. Id. ¶ 2. She attempted to use a self-pay register. Id. She had a hurried pace. Id. ¶ 3. She purchased more items at another store and then dropped everything off at her boy-friend’s home. Id. ¶ 4. Affiant noted that in his experience persons who purchased ingredients for methamphetamine buy the items in more than one store to avoid de-tection by law enforcement. Id. ¶ 3. Affiant suspected the boyfriend was involved in the manufacturing of methamphetamine. Id. ¶ 4. The Court concluded that these suspicious activities were insufficient to establish that it was any more or less prob-able that the defendant would use them for an illicit purpose. Id. ¶ 28. Thus, the affidavit failed to establish probable cause to support the issuance of a search warrant for the boyfriend’s house. See id.23 In State v. Sansom, 1991-NMCA-103, 112 N.M. 679, 818 P.2d 880, over-ruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110, this Court concluded that there was no probable cause to search a trailer where the affidavit in support of a search warrant recounted that the truck used during the commission of a crime and was believed to have been carrying the weapon used in the crime, was found parked in front of the trailer within twenty-four hours after the commission of the crime. Id. ¶¶ 2-3. There were insufficient facts in the search warrant affidavit to show that the suspect resided in the trailer or that evidence of the crime could be found in the trailer. Id. ¶¶ 14-15.

24 While the facts here may seem suspi-cious to police familiar with Tahir and the investigation into the Rhode Island prop-erty, they are also consistent with innocent, lawful activity. We conclude that the facts alone may be sufficient to arouse suspicion that the General Arnold property was con-nected to Tahir’s criminal endeavors, but are insufficient to establish the reasonable probability that criminal activity was tak-ing place at the General Arnold property, or that evidence of a crime would be found there.25 To hold that the extensive concen-trated details of the Rhode Island property affidavit is a sufficient reasonable inference to support the issuance of a search warrant for the General Arnold property dodges the protections set forth by the United States and New Mexico Constitutions. Again, a mere affirmance of a suspicion or belief by affiant that the objects in question are connected with criminal activity is insufficient to establish probable cause. Gurule, 2013-NMSC-025, ¶ 14; see Nathanson, 290 U.S. at 47; Evans, 2009-NMSC-027, ¶ 11. Affidavit’s Concluding Paragraph26 Defendant also argues that the war-rant does not describe with particularity the things to be searched or seized. The concluding paragraph of the affidavit for search warrant states:

Based on the above information, and due to the circumstances, the Affiant respectfully requests this search warrant be granted in or-der to examine the scene for any and all evidence which may lead investigators to the offender(s) and or possible witnesses in this case under the auspices of the District Court, County of Bernalillo, State of New Mexico.

(Emphasis added.) The Fourth Amend-ment to the United States Constitution requires that a search warrant particularly describe the “things to be seized.” Article II, Section 10 of the New Mexico Consti-tution requires that the search warrant must describe the “things to be seized.” “The purpose of the particularity require-ment is to prevent general searches.” State v. Light, 2013-NMCA-075, ¶ 22, 306 P.3d 534; see also Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985) (stating that “[t]he particularity requirement ensures that a search is confined in scope to par-ticularly described evidence relating to a specific crime for which there is demon-strated probable cause”). There must be

a sufficient nexus between the evidence law enforcement is looking for and the particular place being searched.27 In our recent opinion in Light, we concluded a search warrant was impermis-sibly broad when it allowed law enforce-ment to search “all persons” located within a theater known for illegal substances and the defendant’s only connection to any crime was her presence at a public event where the illegal activity was taking place. 2013-NMCA-075, ¶¶ 1-2. The Light parties agreed that there was probable cause to search the defendant and that law enforce-ment was justified in entering and search-ing the premises for evidence of drugs and drug paraphernalia. Id. ¶ 23. However, the disagreement was with the validity of an “all persons” warrant. Id. ¶¶ 24-25.28 There is no question that the search warrant and supporting affidavit are clear about the place to be searched, the General Arnold property. The problem is with the all encompassing authorization given to law enforcement officers to search for and seize everything and anything that they the officers themselves determine “may lead investigators to the offender(s) and or pos-sible witnesses” in the case. This warrant is therefore invalid as an impermissible general warrant.29 Accordingly, we conclude that the General Arnold property search warrant was invalid for lack of probable cause and as an impermissible general warrant. The comprehensive information pertaining to the Rhode Island property and the morsels of flawed information attribut-able to the General Arnold property fall short of showing the required nexus between Tahir and his alleged criminal activity at the Rhode Island property and Tahir and similar alleged criminal activ-ity at the General Arnold property. See Haidle, 2012-NMSC-033, ¶ 36 (conclud-ing that the facts included in the search warrant affidavit amounted to “bits and pieces of circumstantial . . . content . . . [which] fail[ed] to provide the substan-tial evidence required for the [judge] to find probable cause”). We reverse and remand for proceedings consistent with this Opinion.30 IT IS SO ORDERED.

M. MONICA ZAMORA, Judge

I CONCUR:MICHAEL E. VIGIL, JudgeJONATHAN B. SUTIN, Judge (dissenting).



http://www.nmcompcomm.us/Advance OpinionsSUTIN, Judge (dissenting).31 I respectfully dissent.32 In reviewing a challenge to a search warrant, we do not substitute our judg-ment for that of the issuing court. Trujillo, 2011-NMSC-040, ¶ 17. Rather, looking at the affidavit as a whole, while consider-ing the reasonable inferences that may be drawn from it, as well as the direct and circumstantial evidence alleged, we must determine whether it provides a “sub-stantial basis for determining that there is probable cause to believe that a search will uncover evidence of wrongdoing.” Id. ¶¶ 17, 19 (internal quotation marks and citation omitted). “Probable cause to search a specific location exists when there are reasonable grounds to believe that a crime has been committed in that place[] or that evidence of a crime will be found in that location.” Id. ¶ 16 (alteration, internal quotation marks, and citation omitted). Because the relevant inquiry is whether the warrant-issuing court’s determina-tion of probable cause was supported by a substantial basis in the affidavit, we limit our review to “the information contained in the four corners of the affidavit.” Gurule, 2013-NMSC-025, ¶¶ 16-17. If the affidavit provides a substantial basis to support a finding of probable cause, the issuing court’s determination must be upheld. Id. ¶ 16. “When ruling on probable cause, we deal only in the realm of reasonable possibilities, and look to the totality of cir-cumstances to determine if probable cause is present.” Williamson, 2009-NMSC-039, ¶ 31 (internal quotation marks and citation omitted).33 The majority places no significance on or relevance as to that part of the af-fidavit for the General Arnold property that recites the information in the Rhode Island property affidavit. The affidavit for the General Arnold property contained the same information that was in the Rhode Island property affidavit. The court issu-ing the General Arnold property search warrant had that information before it.

The court’s careful reading of the affidavit would provide reasonable inferences to support issuance of the search warrant. With the information contained in the affidavit for the General Arnold property relating to the Rhode Island property af-fidavit and the remainder of the informa-tion contained in the General Arnold property affidavit, I conclude that there existed probable cause to issue the General Arnold property search warrant.34 The “tip” received and the investiga-tion conducted by Detective Fassler were rendered credible from the information Detective Fassler obtained from the Rhode Island property investigation combined with his independent observation of the General Arnold property. Detective Fassler had probable cause to seek a search warrant the moment he saw Tahir at the General Arnold property with the same sort of suspicious vehicles in sight that he discovered in his investigation of Tahir’s activities at the Rhode Island property.35 The majority’s view that the search warrant and affidavit too broadly autho-rized the executing officers to search and seize “everything and anything” condu-cive to the investigation is based on an isolated view of the affidavit’s concluding paragraph. Majority Op. ¶ 28. Viewed within the context of the entire affidavit, an officer would reasonably discern the items to be seized under the warrant. See United States v. Kuc, 737 F.3d 129, 133 (1st Cir. 2013) (declining to read a single clause of a warrant in isolation, and recognizing that “a warrant’s language must be read in context, such that the general tail of the search warrant will be construed so as not to defeat the particularity of the main body of the warrant” (internal quotation marks and citation omitted)); United States v. Conley, 4 F.3d 1200, 1208 (3d Cir. 1993) (“[T]he phrases in a search warrant must be read in context and not in isolation.”).36 In the opening paragraphs of his affidavit, Detective Fassler stated that he had reason to believe that the following

items were concealed at the General Ar-nold property: “stolen/altered vehicles[, v]ehicles with vin plates removed, [t]ools to take and alter vehicles, documentation of altering/changing vehicles[, r]emoved vin plates, [and] NADER labels[] to change and alter stolen vehicles[’] iden-tities.” The affidavit included details re-garding Detective Fassler’s investigation into Tahir’s VIN-switching operation at the Rhode Island property, and the fact that surveillance of the General Arnold property revealed an apparently similar operation. Against that backdrop, the affidavit concluded: “Based on the above information, and due to the circum-stances, the Affiant respectfully requests this search warrant be granted in order to examine the scene for any and all evidence which may lead investigators to the offender(s) and or possible witnesses in this case[.]” Read in its entirety, the affidavit, which was attached to and in-corporated by the warrant would permit an officer reading it to reasonably know that the items to be seized were those items particularly related to the at-issue VIN-switching operation, in particular the tools-of-the-trade enumerated in the initial paragraphs of the affidavit. See State v. Hinahara, 2007-NMCA-116, ¶ 9, 142 N.M. 475, 166 P.3d 1129 (stating that the test for particularity is whether the warrant would allow an officer read-ing it to reasonably discern the place to be searched and the items to be seized); State v. Steinzig, 1999-NMCA-107, ¶¶ 37-39, 127 N.M. 752, 987 P.2d 409 (re-jecting the defendant’s lack-of-particu-larity argument where the items “to be searched and seized were described with sufficient particularity to be specifically related to the [specific criminal] activity believed to be occurring at” the place to be searched). To assume otherwise exhibits a lack of faith in the sensibleness of police officers charged with reading and executing the search warrant.

JONATHAN B. SUTIN, Judge




Certiorari Denied, October 8, 2014, No. 34,887



STATE OF NEW MEXICO,Plaintiff-Appellee,

v.CHRISTOPHER ALLEN,Defendant-Appellant

Docket No. 32,774 (filed September 8, 2014)

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY JOHN DEAN, District Judge


Santa Fe, New MexicoM. ANNE KELLY

Assistant Attorney GeneralAlbuquerque, New Mexico

for Appellee

JORGE A. ALVARADOChief Public DefenderB. DOUGLAS WOOD III

Assistant Appellate DefenderLAW OFFICE OF THE PUBLIC DEFENDER


Opinion

Michael E. Vigil, Judge1 This is an identity theft case. The ques-tion presented is whether Defendant can be prosecuted in New Mexico when he never set foot in New Mexico, and all the acts of using Victim’s identity occurred in other states. Concluding that New Mexico has jurisdiction to prosecute Defendant, we affirm.BACKGROUND2 Victim attempted to obtain a New Mexico driver’s license and discovered that someone had used his identifying information to obtain an Arizona driver’s license. A police investigation revealed that Defendant used Victim’s identity to obtain a driver’s license in Arizona, rent cars in Arizona, Nevada, and Georgia, and to provide booking information upon his arrest in Georgia. It is undisputed that none of the acts of using Victim’s identity took place in New Mexico and that Victim resided in San Juan County, New Mexico at the time of the transactions. The State charged Defendant with eight counts of identity theft contrary to NMSA 1978, Section 30-16-24.1(A) (2009), which provides:

Theft of identity consists of will-fully obtaining, recording or

transferring personal identifying information of another person without the authorization or consent of that person and with the intent to defraud that person or another or with the intent to sell or distribute the information to another for an illegal purpose.

3 Defendant filed a motion to dismiss for lack of jurisdiction. The motion focused on the fact that the alleged crimes took place in Arizona, Nevada, and Georgia–not New Mexico. He argued that the fact that Victim resides in New Mexico is irrelevant because under the United States and New Mexico constitutions, “[a] crime must be prosecuted in the jurisdiction where it was committed.” The State opposed the mo-tion, asserting that Section 30-16-24.1(G) grants New Mexico jurisdiction because under Section 30-16-24.1(G)(1), the crime is deemed to have been committed in the county where the victim resides. Defen-dant insisted that Section 30-16-24.1(G) is solely a venue statute, relevant in cases where New Mexico otherwise has jurisdic-tion and that Section 30-16-24.1(G) can-not confer New Mexico with jurisdiction to prosecute crimes committed outside of New Mexico. Defendant asserts to in-terpret Section 30-16-24.1(G) otherwise, would render it unconstitutional.

4 The district court denied Defendant’s motion. The district court did not rely on Section 30-16-24.1(G), ruling instead:

1. If any of the elements of the crime of theft of identity occurred in New Mexico, [the district c]ourt has subject matter jurisdiction. 2. One element of the crime is that the alleged offender used the personal identifying infor-mation of another without the authorization of the owner of the personal identifying information. 3. The “without authoriza-tion” element of theft of identity can only occur where the owner of the personal identifying infor-mation resides. 4. The State alleges that [Victim] did not authorize the use of his personal identifying information by . . . Defendant and that [Victim] resides in San Juan County, New Mexico. 5. If these allegations are proven, the “without authoriza-tion” element occurred in New Mexico and [the district c]ourt has subject matter jurisdiction over the alleged crimes and . . . Defendant’s Motion to Dismiss For Lack of Jurisdiction should be denied.

(Footnote omitted).5 Thereafter, Defendant plead guilty to two of the counts of identity theft, reserv-ing his right to appeal the denial of the motion to dismiss. This appeal followed.DISCUSSION6 Defendant argues that the district court erred as a matter of law in ruling that the “without authorization” element of identity theft can only occur where the owner of the personal identifying informa-tion resides. Thus, Defendant asserts, the district court erred in concluding that it had jurisdiction because Victim lived in New Mexico, and a New Mexico district court has jurisdiction over the offense if any of the elements of theft identity oc-curred in New Mexico. It is not necessary for us to determine whether the “without authorization” of the crime must occur where the victim resides because, as dis-cussed below, we conclude that the district court otherwise had jurisdiction. “As a general rule, however, we will uphold the decision of a district court if it is right for any reason.” State v. Ruiz, 2007-NMCA-014, ¶ 38, 141 N.M. 53, 150 P.3d 1003; see



http://www.nmcompcomm.us/Advance Opinionsalso State v. Wilson, 1998-NMCA-084, ¶ 17, 125 N.M. 390, 962 P.2d 636 (“Appel-late courts usually apply the right for any reason basis of affirmance to strictly legal questions.”).A. Standard of Review7 Our standard of review is de novo for three reasons. First, issues of subject matter jurisdiction are reviewed under a de novo standard. State v. Gutierrez, 2011-NMCA-088, ¶ 3, 150 N.M. 505, 263 P.3d 282 (“‘We review jurisdictional issues . . . under a de novo standard of review.’” (quoting State v. Heinsen, 2005-NMSC-035, ¶ 6, 138 N.M. 441, 121 P.3d 1040)); see State v. Chavar-ria, 2009-NMSC-020, ¶ 11, 146 N.M. 251, 208 P.3d 896 (“Questions regarding subject matter jurisdiction are questions of law which are subject to de novo review.” (internal quotation marks and citation omitted)). Second, because the pertinent facts are undisputed, we review de novo whether the law was correctly applied to those facts. See State v. Gutierrez, 2004-NMCA-081, ¶ 4, 136 N.M. 18, 94 P.3d 18 (stating that when the material facts are undisputed, we apply a de novo standard of review to the district court’s application of the law to those facts). Finally, to the extent we are required to construe Section 30-16-24.1, our review is de novo. See State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022 (“We review questions of statutory interpretation [de novo].”).B. Jurisdiction Versus Venue8 The State insists that because the dis-trict court is a court of general jurisdiction under Article VI, Section 13 of the New Mexico Constitution with jurisdiction to try an identity theft offense, and the district court obtained personal jurisdiction over Defendant, the issue actually presented is one of venue, not jurisdiction. We disagree.9 It is clear that “venue is not to be equated with jurisdiction.” State ex rel. Dep’t of Pub. Safety v. One 1986 Peterbilt Tractor, 1997-NMCA-050, ¶ 23, 123 N.M. 387, 940 P.2d 1182; see Kalosha v. Novick, 1973-NMSC-010, ¶¶ 24-25, 84 N.M. 502, 505 P.2d 845 (explaining that venue and jurisdiction are distinct concepts and over-ruling cases to the extent that they treat them as the same). “Jurisdiction goes to the power of a court to entertain the cause, while venue simply goes to the convenient and proper forum.” One 1986 Peterbilt Tractor, 1997-NMCA-050, ¶ 23 (internal quotation marks and citation omitted). Nevertheless, limits on jurisdiction and venue may sometimes overlap. Professor LaFave explains:

The most common overlap stems from the jurisdictional limits that restrict by reference to the geographical locus of the offense the authority of the ju-diciary to apply the laws of the particular government (national, state, or municipality) of which it is a part. . . . [S]uch jurisdictional limits are tied to the territorial reach of the particular govern-ment’s legislative power. If the events that would give rise to a criminal charge occurred beyond that territorial reach, then the government cannot grant to its courts the authority to apply its criminal laws to those events. If the government’s legislative power could reach those events, then the judiciary of that govern-ment is said to have ‘jurisdiction’ over the offense. To say that the judiciary has such jurisdiction, however, is not to say that every judicial district within that judi-ciary is a proper locality for the prosecution of the offense. The determination of proper locality is what the setting of venue is about. It looks to the convenience of the forum rather than the ter-ritorial reach of the government’s legislative power.

4 Wayne R. LaFave et al., Criminal Pro-cedure § 16.1(a), at 692 (3d ed. 2007) (footnotes omitted); see also People v. McLaughlin, 606 N.E.2d 1357, 1359 (N.Y. 1992) (stating that venue refers to the proper county or place of trial and that the territorial jurisdiction which “goes to the very essence of the [s]tate’s power to prosecute”).10 Thus, the State’s argument over-looks the requirement that a criminal charge must have been committed within the territorial reach of the court for it to have authority (i.e., jurisdiction) to try the case. See Heckathorn v. Heckathorn, 1967-NMSC-017, ¶ 10, 77 N.M. 369, 423 P.2d 410 (“There are three jurisdictional essentials necessary to the validity of every judgment: jurisdiction of parties, juris-diction of subject matter and power or authority to decide the particular matter presented.”).11 At common law, the rule of territo-rial jurisdiction is that “[t]he criminal law of a state has no operation or effect beyond its geographical or territorial limits.” Rios v. State, 733 P.2d 242, 245 (Wyo. 1987)

(second alteration, internal quotation marks, and citation omitted); see also State v. Dudley, 581 S.E.2d 171, 176 (S.C. Ct. App. 2003) (“Common law has established ‘a territorial principle as the jurisdictional foundation for the reach of state laws. Under that principle, states have power to make conduct a crime only if that conduct takes place, or its results occur, within the state’s territorial borders.’” (quoting 4 Wayne R. LaFave et al., Criminal Procedure § 16.1(a), at 459 (2d ed.1999)), aff ’d as modified, 614 S.E.2d 623; In re Vasquez, 705 N.E.2d 606, 610 (Mass. 1999) (“The general rule, accepted as ‘axiomatic’ by the courts in this country, is that a [s]tate may not prosecute an individual for a crime committed outside its boundaries.”).12 On the other hand, there can be no territorial jurisdiction where conduct and its results both occur outside the state’s territory. See 4 Wayne R. LaFave, Criminal Procedure § 16.4(c), at 838-39 (3d ed. 2007); see also Rollin M. Perkins, The Territorial Principle in Criminal Law, 22 Hastings L.J. 1155, 1165 (1970-71) (noting that a state may not “punish what is done within the exclusive territorial jurisdic-tion of another state”). The United States Supreme Court early in our nation’s history expounded on this principle stating, “We answer [whether a state can prosecute a defendant for acts committed outside its borders], without hesitation, the juris-diction of a state is co-extensive with its territory; co-extensive with its legislative power.” See United States v. Bevans, 16 U.S. 336, 386-87 (1818).13 The principle has been recognized in New Mexico. See State v. Mirabal, 1989-NMCA-057, ¶ 12, 108 N.M. 749, 779 P.2d 126 (recognizing that “the record must establish that a defendant commit-ted the crime in New Mexico” to satisfy jurisdictional requirements); State v. Wise, 1977-NMCA-074, ¶ 18, 90 N.M. 659, 567 P.2d 970 (explaining that venue relates to which county within a state is proper, and a challenge to venue can be waived, “so long as the crime occurred in New Mexico”); State v. Ramirez, 1976-NMCA-101, ¶ 23, 89 N.M. 635, 556 P.2d 43 (recognizing that a challenge that the state failed to prove the crime was committed in New Mexico as a challenge to New Mexico’s authority to prosecute the crime), overruled on other grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162; State v. Losolla, 1972-NMCA-085, ¶¶ 4-5, 84 N.M. 151, 500 P.2d 436 (reversing the defendant’s conviction for lack of jurisdiction because



http://www.nmcompcomm.us/Advance Opinionsthe state failed to prove that the defendant used drugs in New Mexico and “the law is that a crime must be prosecuted in the jurisdiction where it was committed”); see generally, New Mexico Criminal Uniform Jury Instructions (requiring that the jury find that the crime “happened in New Mexico”). Thus, Defendant correctly argues that his challenge to the State’s authority to prosecute him is an attack on its jurisdiction.14 Defendant asserts that convicting him for crimes in which the actions oc-curred outside of New Mexico denies him due process of law. See N.M. Const. art II, § 18; U.S. Const. amend. XIV. In support of his assertion, Defendant specifi-cally refers us to provisions in the United States and New Mexico constitutions which guarantee a defendant the right to a trial where the crime is alleged to have been “committed” as sources of territorial jurisdiction. See N.M. Const. art. II, § 14 (stating that a defendant has a right to a trial by an impartial jury “of the county or district in which the offense is alleged to have been committed”); U.S. Const. amend. VI (stating that the accused has a right to a trial by an impartial jury “of the [s]tate and district wherein the crime shall have been committed”). However, these constitutional provisions have been construed as venue requirements, and not jurisdictional requirements. See State v. Lopez, 1973-NMSC-041, ¶ 12, 84 N.M. 805, 508 P.2d 1292 (explaining that Article II, Section 14 of the New Mexico Consti-tution and similar statutory provisions “have been construed and are considered as conferring a personal right or privilege of venue on the accused”); United States v. Passodelis, 615 F.2d 975, 976-77 (3d Cir. 1980) (discussing United States Supreme Court cases addressing the Sixth Amend-ment as “[a] venue provision[] of the Constitution”). Thus, we do not construe these constitutional provisions as sources of territorial jurisdiction. See Rios, 733 P.2d at 245 (rejecting the proposition that the Sixth Amendment is a source of territo-rial jurisdiction for Wyoming state courts because it is a venue provision). We now turn to whether New Mexico exceeded its jurisdictional limits by prosecuting Defendant for acts he committed in other states.B. Evolution of Territorial Jurisdiction15 Historically, the concept of territo-rial jurisdiction was strictly applied. See Dudley, 581 S.E.2d at 177 (explaining that “[u]nder the historical strict territorial

principle, a state court had jurisdiction only over those crimes which occurred entirely within that state’s boundaries; if any essential element occurred in another state, neither possessed jurisdiction over the criminal offense. Under this view of jurisdiction, only one state could have jurisdiction over a particular crime.” (internal quotation marks and citation omitted)). Early on, this jurisdictional loophole was addressed legislatively in the context of murders where the stroke was committed in one state and the fatal blow received in another. In State v. Hall, 19 S.E. 602 (N.C. 1894), the North Carolina Supreme Court noted that in ancient times it was unclear whether a murder should be prosecuted where the fatal blow was struck or where it was received. As a result, states began enacting legislation providing for a prosecution where the blow was received. Such legislation was “never questioned” when applied to acts of murder spanning different counties within a state, “but where its provisions have been extended so as to affect the jurisdiction of the different states, its constitutionality has been vigor-ously assailed. Such legislation, however, has been very generally, if not, indeed, uniformly, sustained.” Id. at 603. “Statutes of this character are founded upon the general power of the legislature, except so far as restrained by the constitution of the commonwealth and the United States, to declare any willful or negligent act which causes an injury to person or property within its territory to be a crime.” Id. The court added that the validity of these types of statutes “seems to be undisputed; and in-deed it has been held in many jurisdictions that such legislation is but in affirmance of the common law.” Id.16 In Strassheim v. Daily, 221 U.S. 280 (1911), the United States Supreme Court expanded the limits of strict territorial ju-risdiction in the absence of any legislation. In Strassheim, the defendant was indicted in Michigan for bribery and obtaining money from the state of Michigan by false pretenses, based upon his involve-ment in selling the state used machinery represented as new. Id. at 281-82. He was arrested in Illinois and contested his extra-dition to Michigan, arguing that Michigan lacked jurisdiction because the alleged acts were completed entirely in Illinois. The defendant argued, and the Court assumed, that none of his acts were committed in Michigan. Nevertheless, the Court opined,

[T]he usage of the civilized world would warrant Michigan in pun-

ishing him, although he never had set foot in the state until after the fraud was complete. Acts done outside a jurisdiction, but intended to produce and produc-ing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power.

Id. at 284-85. From Strassheim we con-clude that if a crime has a detrimental effect in a state, that state has territorial jurisdiction to prosecute the perpetrator notwithstanding that the acts were com-mitted entirely within another state.17 Applying the detrimental effects theory, many states have enacted laws that focus on where the effects of a criminal act are felt to establish territorial jurisdic-tion. See 4 Wayne R. LaFave et al., supra, § 16.4(c), at 847-48 (“A substantial majority of the states today have statutes that adopt an interpretation of the territorial principle substantially more expansive than the traditional common law position[, s]up-ported by the broad view of the territorial principle set forth by Justice Holmes in . . . Strassheim[.]”); Dudley, 581 S.E.2d at 177 (listing samples of such statutes). The constitutionality of such legislation has been repeatedly assailed and upheld. People v. Govin, 572 N.E.2d 450, 454 (Ill. App. Ct. 1991) (upholding the constitutionality of a statute conferring jurisdiction if the result occurs in the state based on Strassheim); State v. Paiz, 777 S.W.2d 575, 577 (Tex. Ct. App. 1989) (upholding the constitutional-ity of statutes conferring Texas with juris-diction over the defendant who failed to pay child support for a child living in Texas although the defendant was not a resident of Texas, concluding that “Texas courts have jurisdiction over the subject matter of this cause and are justified in punishing the acts or omissions of [the defendant] even though he neither resided nor visited Texas nor violated a Texas court order” because the detrimental effects of the defendant’s nonpayment of child support were felt in Texas), aff ’d, 817 S.W.2d 84; see also Rios, 733 P.2d at 246-49 (discussing thoroughly decisions from other states re-garding the impact of Strassheim); see also 4 Wayne R. LaFave et al., supra, § 16.4(c), at 855 (“Courts have regularly upheld the constitutionality of the expanded territo-rial jurisdiction provided by territorial scope legislation. Because such legislation adheres to the territorial principle, it is



http://www.nmcompcomm.us/Advance Opinionsheld not to violate due process and to be consistent with the Sixth Amendment’s ‘vicinage clause’ (should it be applicable to the states).” (footnote omitted)).C. Section 30-16-24.1(G)18 Defendant acknowledges the impact of Strassheim in this case, but insists that the district court must have been able to point to a specific legislative enactment that encompasses the detrimental effects theory of Strassheim and therefore confers New Mexico with jurisdiction. We dis-agree with Defendant that New Mexico’s territorial jurisdiction must be expressed by a statute. The principles recognized by Justice Holmes in Strassheim provide the basis for New Mexico’s exercise of jurisdiction in the absence of legislation. See Dudley, 581 S.E.2d at 525-26 (discuss-ing additional decisions recognizing the detrimental effects doctrine set forth in Strassheim independent of any legislation and going on to explain that the absence of such legislation is not dispositive); Rios, 733 P.2d at 249 (“While Wyoming does not have a specific statute which permits the exercise of jurisdiction when extraterrito-rial conduct causes a result in this state, the concept articulated in Strassheim . . . does not depend upon the existence of such a statute.”); In re Vasquez, 705 N.E.2d at 611 (holding that a state is not precluded from relying on rule in Strassheim—even absent a statute—given the “Strassheim Court itself made no reference to the need for such a statutory provision”).19 Nonetheless, the Legislature enacted Section 30-16-24.1(G). Section 30-16-24.1(G) in its entirety provides:

G. In a prosecution brought pursuant to this section, the theft of identity or obtaining identity by electronic fraud shall be con-sidered to have been committed in the county: (1) where the person whose identifying information was appropriated, obtained or sought resided at the time of the offense; or (2) in which any part of the offense took place, regard-

less of whether the defendant was ever actually present in the coun-ty.While Section 30-16-24.1(G) necessarily relates to venue, we believe it also has an impact upon territorial jurisdiction. The crime of identity theft necessarily affects the victim, and Section 30-16-24.1(G) expressly provides that the crime is “considered to have been committed” in the county where the victim resides. This language therefore accomplishes a dual purpose. First, it establish-es the proper county within New Mexico where the crime may be prosecuted (venue). Second, it sets forth a legislative determi-nation that because the crime has an effect upon the victim in New Mexico, New Mexico has territorial jurisdiction over the offense, even if the acts are com-mitted in another state. See State v. Ogden, 1994-NMSC-029, ¶ 24, 118 N.M. 234, 880 P.2d 845 (“The principal command of statutory construction is that the court should determine and effectuate the intent of the [L]egislature, using the plain language of the statute as the primary indicator of legislative intent[.]” (citations omitted)). Here, Victim encoun-tered issues trying to get a driver’s license in New Mexico, and Vic-tim was mailed rental car bills in New Mexico that were incurred by Defendant outside of New Mexico. Defendant’s extraterrito-rial actions had detrimental ef-fects upon Victim in New Mexico. Therefore, whether pursuant to Section 30-16-24.1(G), or Stras-sheim, New Mexico had jurisdic-tion to prosecute Defendant.

D. Defendant’s Remaining Arguments20 Defendant argues that Article II, Section 14 of the New Mexico Constitu-tion “may” provide greater protection than the United States Constitution, implying that application of the detrimental effects

theory of Strassheim is unconstitutional in New Mexico. He supports this proposi-tion with nothing more than a citation to Article II, Section 14 of the New Mexico Constitution. That section mirrors the Sixth Amendment of the United States Constitution so, without more, we are unpersuaded that on its face the New Mexico Constitution affords Defendant with greater protection. Moreover, we have already explained that Article II, Section 14 relates to venue, not jurisdiction, so it is of no aid to Defendant’s attack on Stras-sheim. Since Defendant failed to articulate and support why he should be afforded greater protection in New Mexico, we conclude that application of the detri-mental effects theory in New Mexico is constitutional. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (holding that an appellate court will not consider an issue if no authority is cited in support of the issue).21 In addition, although Defendant repeatedly asserts that his appeal relates to jurisdiction, not venue, he nonetheless raises the issue of venue at one point in his brief. To the extent Defendant also intends to challenge the constitutionality of venue in San Juan County, challenges to venue, unlike jurisdiction, can be waived, see Wise, 1977-NMCA-074, ¶ 18, and Defendant did not challenge the propri-ety of venue in San Juan County in the district court. One 1986 Peterbilt Tractor, 1997-NMCA-050, ¶ 23 (holding that the defendant’s failure to request a change of venue constitutes a waiver of that defense or claim for relief).CONCLUSION22 The district court order denying Defendant’s motion to dismiss for lack of jurisdiction is affirmed.23 IT IS SO ORDERED.

MICHAEL E. VIGIL, Judge

WE CONCUR:RODERICK T. KENNEDY, Chief JudgeM. MONICA ZAMORA, Judge



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ClassifiedPositions 13th Judicial District Attorney

Senior Trial Attorney, Assistant Trial Attorney, Associate Trial AttorneyCibola, Sandoval, Valencia CountiesSenior Trial Attorney - This position requires substantial knowledge and experience in criminal prosecution, rules of criminal pro-cedure and rules of evidence, as well as the ability to handle a full-time complex felony caseload. Admission to the New Mexico State Bar and a minimum of five years as a prac-ticing attorney are also required. Assistant Trial Attorney - The 13th Judicial District Attorney’s Office is accepting applications for an entry to mid level attorney to fill the positions of Assistant Trial Attorney. This position requires misdemeanor and felony caseload experience. Associate Trial At-torney - an entry level position for Cibola (Grants), Sandoval (Bernalillo) or Valencia (Belen) County Offices. The position requires misdemeanor, juvenile and possible felony cases. Upon request, be prepared to provide a summary of cases tried. Salary for each position is commensurate with experience. Send resumes to Kathleen Colley, District Office Manager, PO Box 1750, Bernalillo, NM 87004, or via E-Mail to: [email protected]. Deadline for submission of resumes: Open until positions are filled.

Lawyer PositionGuebert Bruckner P.C. seeks an attorney with up to five years experience and the desire to work in tort and insurance litigation. If inter-ested, please send resume and recent writing sample to: Hiring Partner, Guebert Bruckner P.C., P.O. Box 93880, Albuquerque, NM 87199-3880. All replies are kept confidential. No telephone calls please.

Santa Fe County – Assistant County AttorneySanta Fe County is seeking qualified indi-viduals to join its growing team of attorneys. Successful candidate will focus their practice in areas assigned based upon experience, need, and interest. The ideal candidate is that with strong analytical, research, com-munication, and interpersonal skills, who enjoy working hard in a collaborative, fast-paced environment on diverse and topical issues that directly impact the community in which they live or work. Salary range is from $27.0817 to $40.6221 per hour, depending upon qualifications and budget availability. Applicant must be licensed to practice law in the State of New Mexico and in the New Mexico federal courts and have a minimum of three (3) years of experience practicing law. This position is open until filled, so interested individuals should apply as soon as possible. Individuals interested in joining our team must apply through Santa Fe County’s web-site, at http://www.santafecountynm.gov/job_opportunities.

Trial LawyerGREAT PAY for a hungry, compassionate, hard-working and successful trial lawyer who wants to fight for injured plaintiffs. We need someone with a track record of loyalty, tenac-ity, and successful results at trial. Less experi-enced lawyers will be considered if extremely qualified and extremely motivated. See our Mission Statement at www.ParnallLaw.com. Email cover letter, resume, references, and university and law school grade transcripts to [email protected].

Assistant District AttorneyThe Fifth Judicial District Attorney’s office has an immediate position open to a new or expe-rienced attorney. Salary will be based upon the District Attorney Personnel and Compensation Plan with starting salary range of an Associ-ate Trial Attorney to a Senior Trial Attorney ($41,685.00 to $72,575.00). Please send resume to Janetta B. Hicks, District Attorney, 400 N. Virginia Ave., Suite G-2, Roswell, NM 88201-6222 or e-mail to [email protected].

Attorney – Civil Rights FellowThe American Civil Liberties Union (ACLU) of New Mexico seeks a full-time Staff At-torney. This position will work on border-specific, immigration-related civil liberties cases. For the full position announcement and how to apply: http://www.aclu-nm.org/job-announcement-attorney-civil-rights-fellow/2014/11/. Position open until filled, preference given to applications received by January 5, 2015.

Attorney – Reproductive Freedom FellowThe American Civil Liberties Union (ACLU) of New Mexico seeks a full-time Staff At-torney, based in Albuquerque. This position will be focused on expanding reproductive freedom in New Mexico as well as civil rights litigation. For the full position announcement and how to apply: http://www.aclu-nm.org/job-announcement-attorney-reproductive-freedom-fellowship/2014/11/. Position open until filled, preference given to applications received by January 5, 2015.

ParalegalThe Santa Fe office of Hinkle Shanor LLP seeks a paralegal for the practice areas of environmental, water, natural resources, real property, public utility and administra-tive law. Candidates should have a strong academic background, excellent research skills and the ability to work independently. Competitive salary and benefits. All inquires kept confidential. Santa Fe resident pre-ferred. Please email resume to: [email protected]

Part-time Office AssistantPart-time Office Assistant needed immedi-ately for a busy, small law office in downtown Santa Fe. Weekday mornings or afternoons. Law office experience preferred. Compensa-tion DOE. Position is temporary with the possibility of becoming permanent. Please email or fax cover letter and resume to [email protected], (505) 726-4689.

Associate Attorney PositionRiley, Shane & Keller, P.A., an Albuquerque AV-rated defense firm, seeks an Associate to help handle our increasing case load. We are seeking a person with one to five years experience. Candidate should have a strong academic background as well as skill and interest in research, writing and discovery support. Competitive salary and benefits. Please fax or e-mail resumes and references to our office at 3880 Osuna Rd., NE, Albu-querque, NM 87109 c/o Office Manager (fax) 505-883-4362 or [email protected]

ParalegalAlbuquerque plaintiffs personal injury firm seeking full-time experienced paralegal. Skills include handling PI claims from initial intake through litigation including resolution of subrogation and medicare issues. Spanish-speaking a plus. Candidate needs to have excellent organizational skills and attention to detail with strong litigation experience. Competitive salary and benefits. Email Kathleen Carter at [email protected].



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Miscellaneous

Office Space

Taos Conference and Office SpaceTaos conference and office space available for depositions and mediations. Call Robyn 575-758-1225

Furnished Offices for RentTwo furnished offices for rent, one block from courthouses, all amenities: copier, fax, telephone system, conference room, internet, phone service, call Ramona for more infor-mation, 243-7170.

Downtown OfficesOne or two offices available for rent, includ-ing secretarial areas, at 2040 4th St. NW (I-40 & 4th St.), ABQ. Rent includes receptionist, use of conference rooms, high speed internet, phone system, free parking for staff and cli-ents, use of copy machine, fax machine and employee lounge. Contact Jerry or George at 505-243-6721 or [email protected].

Share Office SpaceSHARE OFFICE SPACE with two attorneys at 8010 Menaul NE, Albuquerque for $450 per month, includes telephone. Call Audria at 299-8999.

Nob Hill Office SpaceOffices for rent in Law Firm with shared conference rooms and reception area. Call (505) 314-1310.

620 Roma N.W.620 ROMA N.W., located within two blocks of the three downtown courts. Rent includes utilities (except phones), fax, internet, janito-rial service, copy machine, etc. All of this is included in the rent of $550 per month. Up to three offices are available to choose from and you’ll also have access to five conference rooms, a large waiting area, access to full library, receptionist to greet clients and take calls. Call 243-3751 for appointment to inspect.

Legal Publications For Sale: Am Jur 2nd, Vols 1-80, unsupplemented; Am Jur Proof of Facts, Vols. 1-30; Am Jur POF 2nd Vols. 1-50; Am Jur POF 3rd Series 1-13. NM Reports Vols. 4-117 sold as a set. For more information call 505-265-5805.

All advertising must be submitted via e-mail by 4 p.m. Wednesday, two weeks prior to publication (Bulletin publishes every Wednesday). Advertising will be accepted for publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher and subject to the availability of space. No guarantees can be given as to advertising publication dates or placement although every effort will be made to comply with publication request. The publisher reserves the right to review and edit ads, to request that an ad be revised prior to publication or to reject any ad. Cancellations must be received by 10 a.m. on Thursday, 13 days prior to publication.

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december 24, 2014 • volume 53, no. 52 · bar bulletin - december 24, 2014 - volume 53, no52 . 5...

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