State v. Gonzales

• Decision Date: 16 December 2010
• Docket Number: No. 28,693.,28,693.
• Citation: 149 N.M. 226,2011 -NMCA- 007,247 P.3d 1111
• Parties: STATE of New Mexico, Plaintiff–Appellee,v.Raymond Miguel GONZALES, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

149 N.M. 226

247 P.3d 1111

2011 -NMCA- 007

STATE of New Mexico, Plaintiff–Appellee,

v.Raymond Miguel GONZALES, Defendant–Appellant.

No. 28,693.

Court of Appeals of New Mexico.

Sept. 28, 2010.Certiorari Denied, Dec. 16, 2010, No. 32,684.

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 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. 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.A. § 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 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, 126 N.M. 500, 972 P.2d 1 (“[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, 126 N.M. 500, 972 P.2d 1 (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, 126 N.M. 500, 972 P.2d 1. Even if we were to assume without deciding that the PCA was violated in this case, Defendant presented no evidence of widespread and repeated...