Home -> Law Blog Directory -> Criminal Law Blogs -> Fourth Amendment

Criminal Law

: Fourth Amendment

NM: Failure to cite and argue state constitution in trial court waived it

By John Wesley Hall, Jr.

Defendant failed to cite sufficient authority to rely on the state constitution at the suppression hearing. State v. Muñoz, 2008 NMCA 90, 2008 N.M. App. LEXIS 66 (May 21, 2008), certiorari granted, No. 31,151, June 27, 2008: [*27] Defendant has entirely failed to preserve the issue under Gomez. He did not argue to the district court that the state constitution provides greater protection than the Federal Constitution and did not state any reason why it should. See Gomez, 1997 NMSC 6, P 23, 122 N.M. 777, 932 P.2d 1. He failed to even mention the New Mexico Constitution. Affsprung relies on the Fourth Amendment, not the New Mexico Constitution. See Affsprung, 2004 NMCA 38, P 18, 135 N.M. 306, 87 P.3d 1088. If Defendant is arguing on appeal that his trial counsel's mention of "an additional Miranda issue" in the context of his arguments below raised a separate state constitutional argument that the agents were obligated to inform him that he had a right not to cooperate with them, his argument is an unreasonable stretch of the district court record...continue to full post

Full post as published by Fourth Amendment on August 10, 2008 (boomark / email).