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.

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.

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.

The insurer in this matter, New Mexico Public School Insurance Authority, was the most mendacious public entity I have ever litigated against. Before our client's mother retained Kennedy & Oliver, an insurance, money grubber invited mom to a Denny's in Farmington and offered her $10,000. When she did not accept the offer, he falsely told her that there was a cap of $250,000 in damages and she shouldn't hire a lawyer because he would just take one-third of the money for doing little work.

The result would not have been possible without our expert Gilbet Kliman, M.D., a psychiatrist in San Francisco and Director of the Children's Psychological Health Center, Inc., a non-profit organization that works with traumatized children.

The claims were made under 42 U.S.C. Sec. 1983 and alleged a deprivation of Fourteenth Amendment Rights to Equal Protection and Substantive Due Process. The defendant plead guilty to criminal sexual contact and admitted liability. The guilty plea allowed us to proceed to trial without our client's testimony. We were able to tell L.S.'s story through her mom and Dr. Kliman.

Of particular note, the defendant actually testified at trial. Defense counsel apparently believed an apology would enable them to argue that no punitive damages were warranted. However, the defendant asserted his Fifth Amendment Right to refuse to testify about any previous acts of sexual molestation. He also asserted a privilege against disclosing his conversations with counselors in prison.

Ms. Oliver gave a truly beautiful rebuttal argument, which included an analgoy between his staged apology in court and his molestation of L.S. When he turned to apologize to our client's mom, she broke down weeping and turned her back to him. He continued with the apology while our client's mom's shoulders were heaving. Ms. Oliver pointed out that he continued depsite how obvious it was that he was hurting her, because he wanted to selfishly relieve himself on her. Ms. Oliver said that that was just like the molestation itself. He did not care about the damage he was causing; he wanted to continue to gratify himself.

However, the more important aspect of the opinion appears to be how the Tenth Circuit disposed of the defendant's challenge to a government official's search of a personal safe without a search warrant.

The defendant was head of the Electrical Engineering Department at Oklahoma State University. A clerical employee in the same department found a gray, fireproof safe in a department supply room. The clerical employee contended she was unaware of the identity of the owner. From the opinion, it did not appear that the safe was in a private or secure location. The safe was locked, but the clerical employee contended the key was in the lock.

The clerical employee opened the safe, ostensibly to determine who owned it. Inside the safe were "three compact disks, five Polaroid photos, twenty-seven 35mm photos, four personal letters and sixty-three 3.5mm computer diskettes. There were letters addressed to "Michael" and "Dr. Michael Soderstrand," and other letters were signed as "M. Soderstrand." There were also photos of Dr. Soderstrand. The Tenth Circuit failed to comment that the clerical employee undoubtedly knew the identity of the owner of the safe at this point.

Unhappy with merely knowing the identity of the owner, the state employee decided to snoop some more. The clerical employee was curious, so she decided to view one of the good doctor's CD's on her office computer. When she looked, she found "an image that appeared to be several nude Asian children about 10-12 years old." The employee reported the discovery to the dean, who in turn called in the police. The campus cops seized the safe and put it in their safe for - safekeeping. The cops secured a warrant and busted the head of the Electrical Engineering Department (in between breaking up beer parties and combating hooliganism on campus).

The Tenth Circuit casted the state-paid employee, acting on school grounds as a private, curious citizen:

To determine whether a private person's search becomes a Government search, the court examines "(1) whether the Government knew of and acquiesced in the intrusive conduct, and (2) whether the person searching intended to assist law enforcement efforts or to further his [or her] own ends." United States v. Souza, 223 F.3d 1197, 1201 (10th Cir. 2000). Dr. Soderstrand does not contend that law enforcement officers coerced, dominated or directed Al-Harake, or that she otherwise conducted her search pursuant to any law enforcement or other governmental objective. Rather, as he admits, "Al-Harake simply became curious about the safe and its contents."

Am I the only one who noticed that her position as an employee of a public university, acting within her work area at the public university, and using her governmennt owned computer to conduct a search of a private CD, combine to give her the appearance of a state actor and not a private citzen? More to the point, why do we need to determine whether she was coerced by police when she plays on the same team? In sum, a poorly reasoned decision characterized by "conspicuous ignorance" of the obvious. Classic Tenth Circuit reasoning.

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.

1) the threatening presence of several officers; 2) the brandishing of a weapon by an officer; 3) some physical touching by an officer; 4) use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; 5) prolonged retention of a person's personal effects . . . ; 6) a request to accompany the officer to the station; 7) interaction in a nonpublic place or a small, enclosed place; 8) and absence of other members of the public.

[United States v.]Hill, 199 F.3d at 1147-48. We have refused to treat any of the factors cited above as dispositive. United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997); United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (en banc) ("only in rare instances will any one factor produce an inexorable conclusion that a seizure has occurred."). Nor are these factors exclusive. See United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993) ("we have avoided hard line rules to govern this analysis, and our opinion today should not be interpreted as an exhaustive pronouncement."). Rather, we base our Fourth Amendment analysis on the "totality of the circumstances." United States v. Shareef, 100 F.3d 1491, 1505 (10th Cir. 1996) (citation omitted). When viewing the totality of the circumstances, it may be that the strong presence of two or three factors demonstrates that a reasonable person would have believed that he was not free to terminate an encounter with government officials.

The Tenth Circuit then proceeded to explain that it views the detention "through the eyes of a reasonable sixteen year old". The Court concluded that viewed through a juvenile's eyes the encounter was a detention.

The Court rejected the district court's finding of no seizure, which was premised upon a finding that the social worker and the uniformed police officer who accompanied the social worker were merely discussing custody. The Court found that, based on the threats, the teen could reasonably believe that her leaving the encounter in the counselor's office would result in her arrest.

Finally, the Court rejected the defendant's argument that seizures in schools face a less rigorous standard of reasonableness. The Court noted that the cases easing the reasonableness standard for school administrators were based on a recognition that schools must be able to perform their educational function. The seizure of Ms. Jones had nothing to do with the administrative function of the school.

An Albuquerque police officer's actions will cost the city $100,000, the amount awarded to a man he is accused of pepper-spraying and whose arm was broken during a September 2003 incident.

On Wednesday, a federal jury in Santa Fe found Officer Keith L. Sheley liable for using excessive force against Adam Arendt, 31. Arendt had been walking Downtown with his girlfriend when he was assaulted, according to court documents.

Sheley, responding to the assault, pepper-sprayed Arendt and pushed him against a wall, breaking his arm, according to court documents.

Claims that Sheley and his supervisor, Steven Hall, falsely arrested, neglected and unlawfully detained Arendt were dismissed, said Kathryn Levy, the city attorney assigned to the case.

Sheley, still with the Police Department, now works in the Valley Area Command.

The department has concluded an internal investigation into the incident, police spokeswoman Sgt. Beth Paiz said.

The results of the investigation and any administrative action - which could include suspension, a reprimand or retraining - for Sheley is confidential, Paiz said.

Levy said the $100,000 judgment was for compensation, not for punitive reasons.

There were no criminal charges filed in the incident, but the department was alerted to Arendt's lawsuit as a matter of policy.

Any lawsuit involving a police officer is forwarded to the department's internal affairs unit, said Charles Kolberg, a city risk manager.

Usually, though, Kolberg said, complaints are filed with the police department or the city's Police Oversight Commission before lawsuits are filed.

Levy said the city has not decided whether to appeal the case.

The defendant challenged the initial detention. An officer had asked the defendant what he was doing in the apartment complex. Dennison was waiting for a tow truck to tow his other truck before his girlfriend could bash the bejesus out of it. The officer came around a second time after realizing he had heard a call for a domestic violence offender driving a gold station wagon. The officer asked for and received identification from the men. The officer discovered the warrants for Mr. Allen and arrested him. One warrant was for a violent crime and another was for a weapon’s violation. The Tenth Circuit approved the investigative stop, because of the high crime area, the time of morning, the distance of the men’s location from the truck, and the unusual nature of the activity.

The Tenth Circuit stretch comes in the search of the car. The district court approved the search based on a search incident to the arrest of Mr. Allen. The problem was that the government failed to show that Allen was still on the scene when police searched the truck. Thus, the Tenth Circuit said no valid search incident to an arrest.

A search incident to an arrest pre-supposes that the arrestee remains on the scene:

"[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of the arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. 454, 460 (1981) (emphasis added). This court has concluded, however, that "[a] warrantless search incident to arrest is not valid if it is 'remote in time or place from the arrest.'" United States v. Lugo, 978 F.2d 631, 634-35 (10th Cir. 1992) (quoting Chimel v. California, 395 U.S. 752, 764 (1969)). A search incident to arrest is unlawful when a suspect is arrested, removed from the scene, and en route to the police station when the search of the arrestee's passenger compartment begins. Id. at 635

So the Tenth Circuit went stretching for another basis for the search. The Tenth Circuit approved the search of Mr. Dennison’s truck because his passenger, Mr. Allen, was a bad dude:

Like [United States v. Maddox, 388 F.3d 1356, 1359-60 (10th Cir. 2004)], officers here were assisting in the late-night arrest of a potentially dangerous suspect in a high-crime area. Though occupants in Mr. Dennison's truck did not outnumber officers, the scene remained dangerous; at 3:00 a.m., officers could not see inside Mr. Dennison's truck, and they knew that Mr. Allen had multiple arrest warrants. Because a Long investigation "at close range" requires an officer to make a "quick decision as to how to protect himself and others from possible danger," the Supreme Court does not require "that officers adopt alternate means to ensure their safety in order to avoid the intrusion involved in a Terry encounter." Long, 463 U.S. at 1052 (quoting Terry, 392 U.S. at 24, 28); see also Thornton v. United States, 124 S. Ct. 2127, 2137 (2004) (Scalia, J., concurring) ("When officer safety or imminent evidence concealment or destruction is at issue, officers should not have to make fine judgments in the heat of the moment.").

The Court distinguished its holding from Ybarra v. Illinois, 444 U.S. 85, 91 (1979), where the Supreme Court warned that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to a probable cause to search that person." And analogized its holding to Maryland v. Pringle, 540 U.S. 366 (2003) which it contends “allows officers under certain circumstance to find probable cause of a joint illegal enterprise absent particularized suspicion”.

The Court admits, however, that Machine Gun Dennison was a gentleman. The lesson may be that you can go to a bar and maintain your privacy (Ybarra), but if you’re riding with a bad hombre, you’ve given up your Fourth Amendment rights.

The Tenth Circuit upheld the trial court's dismissal of both the state law and federal law false arrest claims despite the existence of disputed facts about whether the plaintiffs complied with the orders of Sholtis.

The Court's analysis was simple. The park was closed; it is a misdemeanor to be in the park after its close even if you can't read the sign; thus, the arrest was supported by probable cause to believe plaintiffs were committing a misdemeanor. The Court held that an arrest in violation of department procedures (SOP's) did not support a false arrest claim under state law.

In addition, the Tenth Circuit upheld the trial court's exclusion of department SOP's on plaintiffs' claims of battery and excessive force.
The Court found that in deciding whether to admit department procedures on use of force, the trial court was correct to be concerned about confusing the jury with a standard different than the Graham objective reasonableness test.

In federal district court in New Mexico, the City of Albuquerque is largely successful in excluding SOP's from evidence. However, their attorneys often open the door to its admission when they solicit whether the officer's conduct was in compliance with the officer's training (as happened in this trial). Once training is discussed, SOP's become admissible; as SOP's are part of training.

As a side not, Officer Sholtis is no longer one of Albuquerque's finest. This blogger successfully sued Officer Sholtis twice to judgment. After the Tanberg incident, Officer Sholtis apparently decided that he would try some other line of work. This was a case of a bad cop who got away with one.

The Tenth Circuit cited New York v. Burger, 482 U.S. 691, 707 (1987), for a three-part test in examining whether a warrantless inspection of a closely regulated industry violates the Fourth Amendment:

First, there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made. Second, the warrantless inspections must be necessary to further the regulatory scheme. . . . Finally, the statute's inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant.

In a strange twist, the Tenth Circuit held that a search in furtherance of a criminal investigation is acceptable if the police possess merely a suspicion of criminal activity. The presence of probable cause to believe criminal activity would be found in the search violates the Fourth Amendment as law enforcement would be required to request a search warrant.

The most egregious aspect of this opinion, however, is the fiction that the search of the toolbox was reasonably related to an administrative search. The statute permitted "officers to examine "vehicles," vehicle "parts," and vehicle "parts . . . stored" at the salvage yard." The Tenth CIrcuit, then termed VIN plates as "parts". In searching the toolbox, law enforcement officers were looking for "parts" because they were looking for VIN plates.

When I go to my local NAPA store, I don't see VIN plates for sale. Mr. Johnson got a raw deal and our freedoms took a hit.

The defendant argued that a state statue, which precludes the New Mexico State Police from cross-commissioning tribal officers for law enforcement activities in Gallup, and other select locales, deprived the Navajo officer of any authority in the City of Gallup. NMSA 1978, Sec. 29-1-11(C)(8). The defendant did not argue on appeal that McKinley County lacked the authority to cross-commission tribal officers.

Despite the language in the statute that prohibits the state police from cross-commissioning tribal officers to enforce state laws in Gallup, the Court of Appeals found that the statute did not divest the tribal officer of the authority to stop a vehicle violating traffic laws in the City of Gallup. The Court agreed that the statute did not alter the McKinley County commission to the officer. The obvious question left open is whether McKinley County has the authority to cross-commission officers. The Court seemed troubled by the cross-commission, but held that the defendant had not raised the issue on appeal

The decision is notable for its recognition that a plaintiff can state a claim for an equal protection violation when he alleges that the government's action was motivated by an animus against the plaintiff as an individual rather than the plaintiff as a member of a protected class. The plaintiff must prove that he was targeted because of some animosity and that others, similarly situated, were treated differently.

The Court also rejected a defense claim that the actions of the building inspection in "just looking around" was a de minimis violation of the Fourth Amendment. The Court distinguished Artes-Roy v. City of Aspen, 31 F.3d 958, 962-63 (10th Cir. 1994)by noting that the entry into the Mimics was intentional and purposeful and not inadvertent.

The Court allowed the plaintiff's First Amendment claim to proceed as well. The Court placed the burden on defendants to show that their conduct was reasonable:

"[P]roof of an official's retaliatory intent rarely will be supported by direct evidence of such intent." Poole v. County of Otero, 271 F.3d 955, 962 (10th Cir. 2001) (quotation omitted). In the context of a summary judgment motion on a qualified immunity defense to a claim involving the defendant's state of mind, the defendant must first show that the challenged conduct was objectively reasonable. Gehl Group v. Koby, 63 F.3d 1528, 1535 (10th Cir. 1995), implicitly overruled on another issue by Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001). Because this court has determined that there is evidence Hasford's entries into MIMICS on December 20, 1996 and January 16, 1997 were not objectively reasonable, we need not conduct any further analysis.(6) Construing the evidence in the Wildgrubes' favor, as we must do on summary judgment, Hasford has failed, at least at this point in the proceedings, to establish that he is entitled to qualified immunity on the Wildgrubes' First Amendment claim.

The case has settled on remand.

In State v. Nunez, 2000 NMSC 13, 129 NM 63, 2 P.3d 264, the New Mexico Supreme Court decided that the bringing of a criminal action after a forfeiture under the Controlled Substances Act violated the Double Jeopardy Clause of the New Mexico Constitution (Art. II, Sec. 15). The Court decided that civil forfeiture under the Controlled Substances Act constituted punishment.

The Nunez court stated:

Forfeiture inflicts a pecuniary penalty as punishment for the crime and seeks to deter any recurrence of the crime. . . . [E]ven though forfeiture has some remedial aspects, the design and motive behind the forfeiture statutes are unquestionably punitive.

In response to the Nunez decision the state legislature revamped forfeiture proceedings in 2002. 31-27-2 NMSA. The Forfeiture Act has two clearly stated purposes:

“1) to make uniform standards and procedures for
the seizure and forfeiture of property subject to
forfeiture; and (2) to protect the constitutional rights
of persons accused of a crime and of innocent persons
holding interests in property subject to forfeiture.”
31-27-2 (A) NMSA.

John Albin was charged with a misdemeanor violation of the New Mexico Controlled Substances Act. The New Mexico Controlled Substances Act provides for the forfeiture of property and cash. NMSA§ 30-31-34. The Act subjects the following to forfeiture:

money which is a fruit or instrumentality of the
crime.

The provisions of the Forfeiture Act [31-27-1 NMSA
1978] apply to the seizure, forfeiture and disposal of
property subject to forfeiture and disposal under the
Controlled Substances Act.
31-31-35 NMSA 1978.

The legal team of Kennedy & Oliver and Valdez is arguing that the Forfeiture Act governs the seizure, handling and final disposition of John Albin’s property as New Mexico State Police Officers were enforcing the New Mexico Controlled Substances Act and the officers charged John Albin with a violation of the New Mexico Controlled Substances Act.

The New Mexico Tort Claims Act provides plaintiff with a right to sue law enforcement officers when there is a violation of an explicit constitutional right or a statutory right. California First State Bank v. State, 111 N.M. 64, 801 P.2d 646 (1990); McDermitt v. Corrections Corporation of America, 112 N.M. 247, 814 P.2d 115 (1991). The only requirement is that the statute be written with sufficient particularity as to give rights to specific individuals. Id.

The Forfeiture Act is a statute that gives property owners explicit rights. The statute is designed to “protect the constitutional rights of persons accused of a crime”. NMSA 31-27-2 (A)(2). John Albin fit into this category of persons. The statute also gives rights to innocent property owners. Id. Plaintiff falls squarely in the category of innocent property owners. John Albin was charged with a crime under the New Mexico Controlled Substances Act. The Forfeiture Act is designed to protect him and his property.

The Forfeiture Act allows law enforcement officers to seize property in certain limited circumstances. NMSA 31-27-4. The Forfeiture Act gives to a property owner the expectation of a speedy prosecution. NMSA 31-27-5 (filing required within thirty (30) days). The Forfeiture Act gives John Albin the right to a single procedure as required in Nunez and the state bears the burden of proof by “clear and convincing evidence”. NMSA 31-27-6. The proceeds of any forfeited funds is designed to go for “drug abuse treatment services, for drug prevention and education programs for other substance abuse demand-reduction initiatives or for enforcing narcotics law violations”. The Forfeiture Act guarantees John Albin the right to a “interest bearing account”. NMSA 31-27-8.

The New Mexico State Police derive their authority from state law. 29-2-1 NMSA. If the defendants choose to ignore their obligations under the Controlled Substances Act and the Forfeiture Act, they lose the authority to seize the property in the first instance. There is no state law authority for defendants to seize property that is alleged to be contraband under a federal statute. The police chief and “other members” of the New Mexico State Police have limited powers and duties. Their powers are limited to keeping the peace; arresting persons who have violated the law and enforcing laws related to the highway. 29-2-18 NMSA. Their authority to seize property is derived directly from the state forfeiture act. Section 31-27-4 allows the seizure of property in carefully defined circumstances. The common requirement is that the property be “property subject to forfeiture”. Under the Forfeiture Act “property subject to forfeiture” is property declared to be subject to forfeiture under state law. NMSA Section 31-27-3(F).

The state has given the defendants no power to enforce civil, federal laws. Since the defendants power is derived from the Controlled Substances Act and the Forfeiture Act, it is incongruous, to say the least, for state officers to seize money under the authority given to them under state law, then to turn around and claim that the state law does not apply.

The Maryland Court of Appeals confronted and disposed of a similar defense by Maryland’s State Police when a property owner complained of a federal adoption of a forfeiture. DeSantis v. Maryland, No. 141 (Maryland Court of Appeals 2005) (copy attached). The DeSantis Court framed the State Police defense as follows:

We begin by considering the State’s contention that the
State Police had authority to circumvent § 297(e) entirely
when it opted to pursue federal adoption and allow the DEA
to forfeit the money under federal law. The State’s primary
argument is that it is not bound by the strictures of § 297
because when the State Police opted for federal adoption
and federal forfeiture, the State statute “never came into
play.” We disagree.
The State Police is not free to circumvent State law
altogether when it decides to forgo State forfeiture
proceedings in favor of federal forfeiture proceedings.
When the State Police seized the cash in petitioner’s car,
it was operating under State, not federal, law, because the
State trooper seized the property pursuant to the
statutory authority granted him under § 297. Furthermore,
when the State Police took custody of the property, it did
so pursuant to State law, without any federal involvement
whatsoever. At the time of the seizure and during the State
Police’s custody of the property, the State Police was
operating under § 297, not 21 U.S.C. § 881. There is no
evidence that federal authorities were involved in, or even
had knowledge of, the seizure of petitioner’s property. Thus,
whatever authority the State Police exercised in seizing and
detaining the property emanated from State law, see § 297
(D)(iv), and not from the auspices of federal authority.
Because the property was “taken or detained under [§ 297],”
§ 297(e) is applicable to the State Police. Indeed, almost
all of the cases having considered this issue have assumed
that state authorities cannot avoid their own state laws
when they transfer the property to federal officials.

The Maryland court decided that the Maryland statue allowed the transfer of the money to the federal government. New Mexico's Act requires a filing of a forfeiture complaint wihtin thirty (30) days or the return of the money to its owner. NMSA 31-27-5.

We will be briefing and argue the legalities of the State Police actions in this regard in the near future. We will keep the New Mexico legal community informed of the outcome.

A new ordinance that allows the city to seize the vehicles of first-time DWI suspects is on hold today as the debate on the law's constitutionality continues.

Attorneys with the American Civil Liberties Union had sought a preliminary injunction against the law, which was to have gone into effect May 11.

But when the ACLU filed its legal challenge that same day, the city agreed not to enforce the ordinance pending a hearing.

Today's ruling by state District Judge Theresa Baca continues that agreement of nonenforcement until both sides in the case have time to file their legal responses to the lawsuit.

Dates of the hearing were not available.

The decision essentially gives the ACLU a temporary injunction without the judge having to render her findings in the case.

ACLU attorneys argue the ordinance assumes guilt before trial.

"Even a superficial examination of the ordinance shouts unconstitutionality," ACLU attorney Paul Kennedy said.

The law applies the city's nuisance abatement ordinance, which allows the city to seize property if it is deemed a nuisance to the public. It imposes the penalty before adjudication, when the driver is cited but before the case goes to trial.

"shouts unconstitutionality"

Ya' gotta love the man's use of the English language.

The opinion applies Rosca ex rel. Roska v. Peterson, 328 F.3d 1230 (10th CIr. 2003). In Roska, the Tenth Circuit held that the state may not remove chidren from a home without a court order unless there is an "immediate threat" to the safety of the child. The Court stated that the mere possibility of danger was not sufficient for the removal of children.

In Arrendo, the mother had brought the eleven month old into the emergency room twice in one week. One visit was for a broken arm and the other visit was for some type of hip injury(as it turned out, the emergency room doctor misdiagnosed the hip injury as a fracture). Medical personnel contacted CYFD, who in turn contacted law enforcement, and reported suspicions of physical abuse. After some investigation and disagreement about whetheh the children were in danger, CYFD removed the children from the home. Judge Molzen found that all state actors enjoyed qualified immunity for their decision to remove the children without court order.

The two critical legal aspects of the case are Judge Molzen's interpretation of Rosca to the effect that no court order is required for removal, even if time permits, when CYFD reasonably decides an emergency exists and Judge Molzen's decision that the question of whether an emergency existed is a legal question for the court.

Judge Molzen's decision is loaded with case cites from across the country. The opinion contains a wealth of knowledge and is a must read for the lawyer contemplating such a claim.