State v. Gonzales

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 15:13:26 2011.04.26
Certiorari Denied, December 16, 2010, No. 32,684

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-007

Filing Date: September 28, 2010

Docket No. 28,693

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

RAYMOND MIGUEL GONZALES,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Teddy L. Hartley, District Judge

Gary K. King, Attorney General
Andrea Sassa, Assistant Attorney General
Santa Fe, NM

for Appellee

Albright Law & Consulting
Jennifer R. Albright
Albuquerque, NM

for Appellant

OPINION

CASTILLO, Judge.

{1} Defendant was charged with three counts of drug trafficking as a result of an
investigation carried out by the United States Air Force Office of Special Investigations
(OSI) at Cannon Air Force Base (the Base). Defendant moved for dismissal of the charges
on grounds that the OSI’s investigation violated the federal Posse Comitatus Act (the PCA),
18 U.S.C. § 1385 (1994). As explained in greater detail in the body of this opinion, the PCA

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places limitations on the degree to which the United States military may participate in local
law enforcement efforts. See State v. Cooper, 1998-NMCA-180, ¶ 14, 126 N.M. 500, 972
P.2d 1. The district court concluded that the OSI investigation did not violate the PCA and
denied the motion to dismiss. Defendant appeals and argues that the district court erred in
concluding that the PCA was not violated and claims that he received ineffective assistance
of counsel. We reject both assertions, and we affirm.

I. BACKGROUND

{2} Defendant was charged with three counts of distributing methamphetamine in
violation of NMSA 1978, Section 30-31-20(A)(2) (2006). These charges stemmed from a
sting operation carried out by the OSI. On the morning of trial, Defendant made an oral
motion for dismissal of the charges based on the assertion that the OSI’s investigation
violated the PCA. The district court took the motion under advisement and indicated that
the issue would be revisited at trial and after the facts underlying the charges were more fully
developed. A summary of the pertinent evidence presented at trial follows.

{3} Jason McMackin (McMackin), an agent with the OSI at the Base, was in charge of
the investigation of Defendant. At the time of Defendant’s trial, McMackin had served in
the military for more than eight years and had focused on narcotics investigations for the last
three of those years. One of the OSI’s responsibilities is to ensure the safety of military
personnel at the Base. This entails periodic assessments of potential narcotics sources in the
community surrounding the Base.

{4} The investigation into Defendant began when the OSI received reports that airmen
were obtaining narcotics from a local business named Solar Shield. During the investigation,
McMackin utilized the services of a confidential informant, airman Dustin Maples (Maples),
who had a part-time job at Solar Shield. Defendant’s uncle, who also worked at Solar
Shield, informed Maples that Defendant could procure narcotics for Maples. Defendant’s
uncle arranged several meetings between Maples and Defendant, and during those meetings
Defendant sold Maples methamphetamine. These transactions were monitored by
McMackin and other OSI agents.

{5} After each transaction, Maples turned over the methamphetamine he purchased from
Defendant to McMackin. After receiving the methamphetamine, McMackin performed field
tests and sent the drugs to the United States Army Criminal Investigation Laboratory.
McMackin’s field tests confirmed that the drugs were indeed methamphetamine, and the
military forensic examiner who evaluated the drugs at the Army lab also confirmed this
conclusion.

{6} There was no testimony presented at trial regarding when, under what circumstances,
and by whom Defendant was arrested, nor is there discussion of these facts in the parties’
submissions. McMackin testified only that the OSI conducts monthly reviews with either
the Clovis Police Department, the New Mexico State Police, or the Region Five task force.

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He explained that when one of these law enforcement agencies has interest in one of OSI’s
targets, OSI passes that case off to the agency. Prior to trial, there was some discussion in
chambers regarding the “mingling” of local, federal, and military law enforcement in the
investigation of Defendant. Specifically, the State proffered that both the Clovis Police
Department and the federal Drug Enforcement Agency were involved.

{7} After the State rested its case at trial, Defendant renewed his motion to dismiss under
the PCA. The district court denied the motion. The court concluded that the PCA had not
been violated because “there was an appropriate military interest” that justified the OSI’s
investigation of Defendant. Defendant was convicted on all three trafficking charges.

II. DISCUSSION

{8} On appeal, Defendant raises two issues. First, he argues that the district court erred
in denying his motion to dismiss because the OSI investigation violated the PCA. Defendant
asserts that, as a consequence of the PCA violation, this Court must overturn his conviction
and dismiss the charges against him. Second, Defendant argues that he received ineffective
assistance of counsel at trial because the PCA violation was raised for the first time on the
day of trial. We review both claims de novo. See State v. Mondragon, 2008-NMCA-157,
¶ 6, 145 N.M. 574, 203 P.3d 105 (reviewing de novo a defendant’s claim that the trial court
erred as a matter of law in denying his motion to dismiss); State v. Boergadine,
2005-NMCA-028, ¶ 33, 137 N.M. 92, 107 P.3d 532 (“The standard of review for claims of
ineffective assistance of counsel is de novo.”). We address each issue in turn.

A. The PCA

{9} The text of the PCA states:

Whoever, except in cases and under circumstances expressly authorized by
the Constitution or Act of Congress, willfully uses any part of the Army or
the Air Force as a posse comitatus or otherwise to execute the laws shall be
fined under this title or imprisoned not more than two years, or both.

18 U.S.C. § 1385. “The term ‘posse comitatus’ ([which means literally the] ‘power of the
county’) denotes a sheriff’s common law authority to command the assistance of able-bodied
citizens in order to enforce the law.” Brian L. Porto, Annotation, Construction and
Application of Posse Comitatus Act (18 U.S.C.S. § 1385), and Similar Predecessor
Provisions, Restricting Use of United States Army and Air Force to Execute Laws, 141
A.L.R. Fed. 271 § 2[a] (1997); see, e.g., Eaton v. Bernalillo County, 46 N.M. 318, 325-26,
128 P.2d 738, 742-43 (1942) (discussing a former New Mexico statute that codified the
common law rule making it an indictable offense to refuse a sheriff’s call for aid of the posse
comitatus).

{10} “Although British common law considered military personnel eligible to assist law

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enforcement, the American tradition has been to limit the role the military could play on the
domestic scene.” Sean J. Kealy, Reexamining the Posse Comitatus Act: Toward a Right to
Civil Law Enforcement, 21 Yale L. & Pol’y Rev. 383, 389 (2003). “This tradition reflects
an American concern, formed well before the Revolution, about the dangers of using a
standing army to keep civil peace” and “[t]his tradition was codified in 1878 with the [PCA],
which forbade the use of the Army to execute the laws or to provide aid to civil authorities
in the enforcement of civilian laws.” Id.; see also Cooper, 1998-NMCA-180, ¶ 13
(“[U]nderlying the PCA is the continuing recognition of the threat to civil liberties caused
by the use of military personnel to execute civilian laws.”).

{11} The PCA does precisely what the text of the statute indicates. The PCA “makes it
a criminal offense, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, to willfully use any part of the Army or the Air Force as a
posse comitatus or otherwise to execute the laws[.]” Cooper, 1998-NMCA-180, ¶ 13
(internal quotation marks and citation omitted). Courts have employed varying tests to
determine when and under what circumstances the PCA is violated. Id. ¶ 14. In Cooper, we
adopted the test that has been recognized by most courts: “[W]here military involvement
is limited and does not invade the traditional functions of civilian law enforcement officers,
such as in making arrests, conducting searches or seizing evidence, the coordination of
military efforts with those of civilian law enforcement does not violate the PCA.” Id.

{12} As described above, the district court’s conclusion that the OSI’s investigation of
Defendant did not violate the PCA was premised on the finding that there was an appropriate
military interest underlying the investigation. Whether an appropriate military interest
existed to justify the OSI’s investigation of Defendant does not resolve the question of
whether that investigation violated the PCA. As discussed above, the pertinent inquiry is
whether the OSI’s involvement in the investigation of Defendant was limited and, thus, did
not invade the traditional functions of civilian law enforcement. Id. Because the district
court employed the wrong legal standard in assessing the merits of Defendant’s claim, we
cannot affirm this case on the basis that the OSI’s investigation did not violate the PCA.
Nevertheless, “[a]n appellate court will affirm a lower court’s ruling if right for any reason.”
Westland Dev. Co. v. Romero, 117 N.M. 292, 293, 871 P.2d 388, 389 (Ct. App. 1994).

{13} In Cooper, this Court made clear that, even where a violation of the PCA is
established, “courts have uniformly held that the exclusionary rule still does not apply unless
it can be shown that, based on widespread and repeated violations of the [PCA], the evidence
should be suppressed for deterrent purposes.” Cooper, 1998-NMCA-180, ¶ 21. Even if we
were to assume without deciding that the PCA was violated in this case, Defendant presented
no evidence of widespread and repeated violations and, therefore, Defendant was not and is
not entitled to exclusion of the evidence obtained by the OSI through their investigation,
dismissal of the charges against him, or any other relief. Cf. United States v. Wolffs, 594
F.2d 77, 85 (5th Cir. 1979) (declining to address the “complex and difficult issue” of
whether, under the facts presented, the PCA was violated and, assuming without deciding
that there was a violation, concluding that the exclusionary rule was inapplicable).

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Defendant failed to prove he was entitled to any relief. Accordingly, we reject Defendant’s
argument that the district court erred in denying his motion to dismiss.

{14} Our focus on the second requirement in Cooper works no unfairness on Defendant.
See Meiboom v. Watson, 2000-NMSC-004, ¶ 20, 128 N.M. 536, 994 P.2d 1154 (recognizing
that an appellate court will not affirm a ruling on a ground not relied upon by the district
court if reliance on the new ground would be unfair to the appellant). Defendant’s motion
to dismiss for violation of the PCA was based on Cooper. Cooper requires that a defendant
prove two elements: First that the PCA was violated and second that there were widespread
and repeated violations of the PCA. Cooper, 1998-NMCA-180, ¶¶ 14, 21. The burden was
upon Defendant to prove both elements. See 141 A.L.R. Fed. 271, § 2[b]. Defendant failed
to submit evidence bearing on the question of his entitlement to relief and, thus, it is not
unfair to hold this failure against Defendant. Cf. Eldin v. Farmers Alliance Mut. Ins., 119
N.M. 370, 376, 890 P.2d 823, 829 (Ct. App. 1994) (declining to apply the right for any
reason doctrine on grounds that it would be unfair to appellant who did not receive notice
below of the grounds upon which the right for any reason doctrine was asserted on appeal).

{15} Recognizing that he did not prove the second element in Cooper, Defendant argues
on appeal that we should revisit our conclusions in Cooper concerning the applicability of
the exclusionary rule in the context of the PCA. Specifically, Defendant contends that
“courts faced with egregious violations of the PCA have found it justifiable to apply an
exclusionary rule without waiting for additional violations of the [PCA] to materialize” and
argues that we should do the same. In support of this assertion, Defendant directs us to
Taylor v. State, 645 P.2d 522 (Okla. Crim. App. 1982), and State v. Pattioay, 896 P.2d 911
(Haw. 1995). We examine these cases below, but first clarify why the exclusionary rule has
only limited applicability in the PCA context.

{16} Courts have cited at least three reasons for the conclusion that the exclusionary rule
is a remedy for only a narrow subset of PCA violations. First, the PCA, where applicable,
provides criminal and monetary sanctions for any violations; the exclusion of evidence is not
mentioned as a remedy. Taylor, 645 P.2d at 524. “Secondly, the potential abuses of the
[PCA] obviously are not of the same magnitude, neither qualitatively nor quantitatively, as
violations under the Fourth Amendment.” Id.; see United States v. Walden, 490 F.2d 372,
376-77 (4th Cir. 1974) (addressing whether the exclusionary rule is an appropriate remedy
for PCA violations and observing that the considerations that require an exclusionary rule
in the Fourth Amendment context are not present in the context of a PCA violation). As one
commentator pointed out, courts have held that “a PCA violation does not amount to a
constitutional violation and therefore neither dismissal of the charges nor the exclusionary
rule is an appropriate remedy.” Kealy, supra, at 406. Third, and “[f]inally, the [PCA]
expresses a policy that is for the benefit of the people as a whole, but not one that may be
characterized as expressly designed to protect the personal rights of defendants.” Taylor,
645 P.2d at 524 (internal quotation marks and citation omitted). In other words, the PCA
“does not provide that the criminal is to go free because the constable has blundered.”
Walden, 490 F.2d at 376 (internal quotation marks and citation omitted). For the foregoing

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reasons, we reaffirm our support for the conclusion in Cooper that the exclusionary rule is
not a per se remedy for PCA violations but, rather, it is only available where the particular
PCA violation at issue is part of a widespread and repeated pattern of such violations and
exclusion is necessary for purposes of deterrence.

{17} Neither Taylor nor Pattioay persuades us to abandon our support for this conclusion.
In Taylor, the Court of Criminal Appeals of Oklahoma first established that “violations of
the [PCA] do not warrant invocation of an exclusionary rule.” Taylor, 645 P.2d at 524.
However, the court went on to state that “it does not necessarily follow that all evidence
obtained in violation of the [PCA] will be admissible” and that the court would “examine
each case involving a violation of the [PCA] and determine whether the illegal conduct by
the law enforcement personnel rises to an intolerable level as to necessitate an exclusion of
the evidence resulting from the tainted arrest.” Id. Examining the facts in that case, the
court found that the military intervention was “excessive,” could not “be condoned,” and,
thus, concluded that the exclusionary rule applied. Id. at 525. We decline to adopt the
analysis embraced in Taylor as it is inconsistent with the conclusion in Cooper that the
exclusionary rule applies only when there is evidence of widespread and repeated violations
of the PCA. We are unwilling to carve out further exceptions that would permit application
of the exclusionary rule based on the intolerableness or severity of the alleged PCA
violation. Cf. State v. Roberts, 786 P.2d 630, 635 (Kan. Ct. App. 1990) (calling into question
the precedential value of Taylor and declining to apply the “extraordinary remedy of
exclusion” for violation of the PCA (internal quotation marks and citation omitted)).

{18} In Pattioay, the Supreme Court of Hawai’i similarly recognized that “[t]he
conclusion that the PCA was violated does not lead inexorably to a ruling that [a defendant
is] entitled to the remedy of suppression” and that “courts have generally found that creation
or application of an exclusionary rule is not warranted” where a violation of the PCA is
established. Pattioay, 896 P.2d at 922-23. Nonetheless, the court held that evidence
obtained in violation of the PCA and then proffered in criminal proceedings against a
defendant must be suppressed. Id. at 925. The Supreme Court of Hawai’i cited two grounds
as support for this conclusion: (1) Lee v. Florida, 392 U.S. 378, 385-87 (1968), where the
United States Supreme Court held that recordings obtained by intercepting a defendant’s
telephone conversations in contravention of federal law were subject to the exclusionary
rule; and (2) the Supreme Court of Hawai’i’s supervisory powers in the administration of
criminal justice in the courts of Hawai’i. Pattioay, 896 P.2d at 923-25.

{19} We are not persuaded that Pattioay calls into question what we said in Cooper. Lee
was decided in 1968 and, since then, various federal courts have examined the issue of the
applicability of the exclusionary rule in the PCA context. See 141 A.L.R. Fed. 271, § 6
(summarizing cases where the exclusionary rule was held an inappropriate remedy for a PCA
violation). To our knowledge, Lee has not been cited as a basis for extending the
exclusionary rule as a per se remedy for PCA violations by any other court except the
Supreme Court of Hawai’i. See id.; Kealy, supra, at 405-08. Additionally, Defendant has
failed to explain how the independent state grounds cited by the Supreme Court of Hawai’i

6
are relevant in New Mexico, and this Court has no duty to review an argument that is not
adequately developed. Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M.
339, 110 P.3d 1076.

{20} In his dissent, Judge Garcia would have us remand for a new trial because, in his
view, the “district court inappropriately thwarted Defendant’s opportunity to present factual
evidence regarding potential widespread and repeated violations of the [PCA].” Dissenting
Opinion ¶ 35. The record shows otherwise.

{21} As discussed above, the district court took under advisement Defendant’s pretrial
motion to dismiss for violation of the PCA and instructed the parties that the motion would
be revisited both at the end of the State’s case and at the end of Defendant’s case. Defendant
renewed the motion to dismiss after the State rested. Based on his contentions that local law
enforcement’s involvement was very limited and that the investigation was almost entirely
a military operation, Defendant argued that the PCA had been violated.

{22} The district court correctly acknowledged that the PCA prohibits the military from
“taking over” and conducting civilian police affairs, but the court’s focus was the military
purpose underlying the investigation. In light of the court’s comments, the State asked to
reopen its case to submit additional evidence regarding the purpose of the investigation.
Defendant did not object and reviewed his version of the evidence after which the court
granted the State’s request.

{23} After hearing the additional evidence, the court denied Defendant’s motion. The
court then inquired whether Defendant intended to present any further evidence. Defendant
rested.

{24} The foregoing demonstrates that the district court did nothing to prevent or limit
Defendant’s ability to present evidence material to the two prongs of Cooper. Any failure
to develop the record regarding widespread and repeated violations is attributable to
Defendant and, not as Judge Garcia concludes, to the district court. Moreover, Defendant
does not argue on appeal that he was denied the opportunity to present evidence or that had
he been allowed to present more evidence, he could have shown that there were potential
widespread and repeated violations of the PCA. Our case law does not permit us to make
this argument for Defendant. See State v. Correa, 2009-NMSC-051, ¶ 31, 147 N.M. 291,
222 P.3d 1 (“On appeal, issues not briefed are considered abandoned, and we do not raise
them on our own.”). Defendant instead urges us to modify Cooper and eliminate the
requirement that a defendant show widespread and repeated violations. We have already
addressed this argument and rejected it. To remand in this circumstance would allow
Defendant a second bite at the proverbial apple. See State v. Curry, 2002-NMCA-092, ¶ 21,
132 N.M. 602, 52 P.3d 974 (affirming denial of motion for new trial thus rejecting the
defendants attempt to “take another bite at the apple.”). This we cannot do.

{25} For the foregoing reasons, we reject Defendant’s assertion that the district court erred

7
in denying his motion to dismiss. We proceed to Defendant’s ineffective assistance of
counsel claims.

B. Ineffective Assistance of Counsel

{26} The law governing ineffective assistance of counsel claims in New Mexico is well
settled.

To establish a prima facie case of ineffective assistance of counsel,
Defendant must show that (1) counsel’s performance was deficient in that it
fell below an objective standard of reasonableness; and (2) that Defendant
suffered prejudice in that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.

State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (internal quotation marks
and citation omitted).

When an ineffective assistance claim is first raised on direct appeal, we
evaluate the facts that are part of the record. If facts necessary to a full
determination are not part of the record, an ineffective assistance claim is
more properly brought through a habeas corpus petition, although an
appellate court may remand a case for an evidentiary hearing if the defendant
makes a prima facie case of ineffective assistance.

State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61.

{27} Defendant’s ineffective assistance of counsel claim is based on two grounds. We
address each in turn. First, he asserts that trial counsel was ineffective because counsel
raised the issue of the PCA violation in an untimely fashion, i.e., the morning of the trial.
The State responds that the timing of the motion is inconsequential in light of the fact that
Defendant was not entitled to a remedy even if he had prevailed in proving a violation of the
PCA and, therefore, cannot prove that the timing of the motion prejudiced him in any way.
We agree with the State.

{28} As discussed above, there was no evidence presented that the OSI’s investigation of
Defendant was part of widespread and repeated violations of the PCA, and Defendant was
not and is not entitled to any relief. Accordingly, Defendant cannot prove that the timing of
the motion caused him prejudice. Regardless of when the motion was submitted, it would
not have affected the proceedings. As Defendant cannot prove that he was prejudiced due
to the timing of the motion, this argument is inadequate to prove a prima facie case of
ineffective assistance of counsel.

{29} The second ground upon which Defendant bases his ineffective assistance of counsel

8
claim concerns the fact that the State amended the charges against Defendant both the day
before trial and at trial. Defendant argues that trial counsel was ineffective in failing to
realize and act upon the charging errors. Defendant submits a variety of claims to support
this argument. He claims that, had trial counsel recognized the charging error, plea
negotiations would have proceeded differently and he may have altered his decision to go
to trial. He then claims that the error with the charges may have affected the jury’s
deliberations. Next, he claims that trial counsel’s failure to recognize the charging error
establishes that trial counsel “did little or nothing” to represent Defendant’s interests in
violation of the rules of professional conduct. Finally, Defendant objects that trial counsel
also failed to file pleadings and did not attend pretrial hearings.

{30} We are unpersuaded by these arguments. Defendant has not cited record evidence
that plea negotiations ever took place, and we do not, therefore, need to consider what
Defendant would have done differently at those alleged negotiations. See Santa Fe
Exploration Co. v. Oil Conservation Comm’n, 114 N.M. 103, 108, 835 P.2d 819, 824 (1992)
(declining to consider arguments based on factual allegations that are unsupported by
citation to the record proper). Furthermore, no record citations were provided to substantiate
Defendant’s claim that defense counsel failed to attend pretrial hearings and, thus, we also
decline to consider this contention. See id. Aside from Defendant’s unsupported and
speculative suggestion, there is no evidence that the charging error had any effect on the
jury. See id. That defense counsel failed to recognize that there was something amiss with
the charges, a problem the State later remedied, does not establish that defense counsel did
nothing to represent Defendant’s interests. Finally, it is not clear how the absence of
pleadings proves that defense counsel was ineffective. See Headley, 2005-NMCA-045, ¶
15 (“We will not review unclear arguments, or guess at what [a party’s] arguments might
be.”).

III. CONCLUSION

{31} For the foregoing reasons, we affirm.

{32} IT IS SO ORDERED.

____________________________________
CELIA FOY CASTILLO, Judge

I CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

TIMOTHY L. GARCIA, Judge (concurring in part and dissenting in part)

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GARCIA, Judge (concurring in part and dissenting in part).

{33} I agree with the majority regarding its determination that the district court erred when
it ruled that the PCA did not apply because an appropriate military interest existed to justify
the OSI’s investigation. I write to respectfully dissent from the majority decision to apply
the right for any reason doctrine that resulted in an affirmance of the lower court ruling on
other grounds.

{34} This Court will only apply a right for any reason doctrine when our reliance on new
grounds would not be unfair to appellant. Meiboom, 2000-NMSC-004, ¶ 20. On appeal,
however, this Court “will not assume the role of the trial court and delve into . . . fact-
dependent inquiries.” Id. (alteration omitted) (internal quotation marks and citation omitted).
We have specifically refrained from doing so “in the absence of any substantial evidence
supporting what would be the right reason.” Allsup’s Convenience Stores, Inc. v. N. River
Ins. Co., 1999-NMSC-006, ¶ 20, 127 N.M. 1, 976 P.2d 1 (filed 1998). “To do so without
allowing [the p]laintiffs the opportunity to develop the record . . . [regarding] factual
allegations would work undue prejudice upon them.” Pinnell v. Bd. of County Comm’rs,
1999-NMCA-074, ¶ 14, 127 N.M. 452, 982 P.2d 503. A finding of prejudice to the appellant
is “especially apparent in [a] case [where the other party] never explicitly raised the issue
below.” Id.

{35} In this case, the district court incorrectly ruled that the PCA did not apply by failing
to recognize the appropriate test established in Cooper, 1998-NMCA-180, ¶ 14, and failing
to take any evidence regarding widespread and repeated violations of the Act, id. ¶ 21. By
ruling that the PCA did not apply at the close of the State’s evidence during trial, the district
court inappropriately thwarted Defendant’s opportunity to present factual evidence regarding
potential widespread and repeated violations of the Act. Evidence regarding whether any
widespread and repeated violations of the Act factually existed was not presented by either
party prior to the district court’s premature and incorrect ruling on the PCA defense. This
failure to develop the record or allow Defendant to proceed with his evidence before ruling
on the applicability of the PCA was unfair and prejudicial.

{36} It is clear that the PCA is an obscure and unique statutory provision that only applies
to a rare number of cases. See id. ¶ 14; see also Pattioay, 896 P.2d at 922. The fact that
Defendant did not discover or present this potential defense until the day before trial
supports its obscurity. The additional time taken by the district court to familiarize itself
with the Act also confirms how rarely our district courts deal with the PCA. Under these
circumstances and the misapplication of the Act during trial, it is unfair to Defendant for this
Court to utilize its position of careful scholarly review to affirm on grounds that were not
raised or addressed below. See Pinnell, 1999-NMCA-074, ¶ 14.

{37} The majority also noted that the PCA has not been recognized to create a Fourth
Amendment protection. Walden, 490 F.2d at 376-77; Kealy, supra, at 406. As a result,
various jurisdictions addressing the Act have applied different evidentiary rules and

10
standards for analyzing whether evidence obtained in violation of the PCA should be
excluded. See Pattioay, 896 P.2d at 922-25 (applying federal wiretapping authority and the
supervisory power of the court); Roberts, 786 P.2d at 634-35 (refusing to apply the remedy
of exclusion for violations of the PCA); Taylor, 645 P.2d at 524 (applying a case-by-case
analysis to determine whether the conduct by law enforcement personnel rises to an
intolerable level); Cooper, 1998-NMCA-180, ¶¶ 14, 21 (applying the exclusionary rule as
a deterrent based upon widespread and repeated violations of the PCA). New Mexico
appears to be one of the only states where a standard of reasonableness regarding the actions
by law enforcement is not a consideration in determining whether evidence seized as a result
of a violation of the PCA should be excluded. Cooper, 1998-NMCA-180, ¶ 21.

{38} Defendant has asked this Court to reconsider whether egregious violations of the
PCA should be deemed sufficient to apply an exclusionary rule. Until available evidence
regarding any widespread and repeated violations of the PCA has been presented to the
district court, this Court should not place itself in the position of reconsidering Cooper and
considering a new exclusionary rule for PCA violations. As a result, this case should be
remanded to the district court for a new trial. Defendant should also be allowed to present
any evidence for consideration of whether the PCA applies and whether any evidence seized
should be excluded.

____________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for State v. Gonzales, Docket No. 28,693

AE APPEAL AND ERROR
AE-RR Right for Any Reason Doctrine

AT ATTORNEYS
AT-EA Effective Assistance of Counsel

CT CONSTITUTIONAL LAW
CT-EC Exclusionary Rule

CA CRIMINAL PROCEDURE
CA-EA Effective Assistance of Counsel

CL CRIMINAL LAW
CL-CL Controlled Substances

FL FEDERAL LAW
FL-AS Armed Services
FL-PO Posse Comitatus Act

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