Search and Seizure Law Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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