A state District Court judge has thrown out 11 subpoenas to obtain cell phone records used to secure grand jury indictments against defendants in a Taos armed robbery, saying the subpoenas were “improperly” issued and they were not “lawful evidence.”
The ruling comes after four people were indicted on various charges stemming from the April 2013 robbery from a Kit Carson Electric Cooperative employee on the way to the bank. A bag full of cash was taken by a masked gunman in the co-op’s parking lot.
Believing it to be an “inside job,” a Taos police detective obtained cell phone records from service providers based on subpoenas signed by a prosecutor. That evidence was used in grand jury proceedings that led to the indictment of Isaac Martinez on Aug. 8.
An affidavit filed in court says Martinez was dating the daughter of a clerk at the electric co-op who was the only employee aware of the bank deposit besides the employee who was robbed. The affidavit listed text messages and phone calls between Martinez, his girlfriend and her mother.
“The grand jury result would have been different had the improperly subpoenaed evidence not been presented to the grand jury,” Judge John Paternoster wrote in 13-page decision.
“We don’t agree with the judge’s ruling,” 8th Judicial District Attorney Donald Gallegos said on Wednesday. Gallegos said he would be reviewing it and is considering appealing to the state Court of Appeals.
The ruling followed a January hearing in Taos on a motion by Martinez to quash the indictment “due to gross prosecutorial misconduct.”
In that hearing, Martinez’s attorney Todd Coberly argued that under state law prosecutor Emilio Chavez did not have authority to issue the subpoenas which resulted in indictments.
“As it is now there is no case against Mr. Martinez,” Coberly said this week. “I think his decision was spot on, it was clear to us he (the judge) did his own independent research.”
Justin Lea, who represented co-defendant and former Kit Carson employee Carla Casias, said, “My client has all along maintained her innocence.”
“This is Taos County’s version of the NSA (National Security Agency) — we want your phone records because we think there is something there,” Coberly said in the January hearing.
Gallegos disagrees. “It’s typical routine police work … like knocking on doors,” he said.
The subpoenas were not in a form approved by the New Mexico Supreme Court, were not issued by the grand jury and did not contain language telling the cell phone providers what their options were in responding, Paternoster wrote. Each subpoena “threatens, advises or promises contempt of court sanctions if they are not complied with,” the judge wrote.
Paternoster found that the federal Stored Communications Act “does not grant a New Mexico prosecutor authority to issue stand-alone subpoenas” and that the subpoenas in this case were obtained “without any judicial oversight,” allowing police to gather evidence outside the requirements of New Mexico’s Constitution.
“The New Mexico Constitution provides persons with greater protections than does the Constitution of the United States,” the ruling said.
This month, the U.S. Supreme Court is expected to hear two cases dealing with police authority to obtain cell phone records without a search warrant.
Some in the Taos legal community believe other cases now could be suspect on the same grounds. Asked about that Gallegos said, “I am not overly concerned about it.”