Supreme Court backs judge who put police searches on trial

With her felony criminal caseload skyrocketing in 2021, state District Judge Melissa Kennelly of Raton wanted to know why. She ran some numbers, perused the files and recognized a pattern.

For instance, the Raton Police Department had threatened to kick in the door of one residence and call the state to take away the woman’s child if she didn’t open up. In another case, Raton police threatened to impound a car they wanted to search if the driver didn’t give them access. Another drug case hinged on a search of the passenger’s side of a car without consent. More than two dozen indigent defendants, she found, were charged with drug crimes based on the police discovery of the contraband.

All the searches were warrantless, meaning no judge had signed off beforehand. And that appeared questionable and even unconstitutional, surmised Kennelly, who spent six years as a police officer in Ohio.

So Kennelly convened 30 hearings with defense attorneys and prosecutors to determine whether the evidence in the cases she identified should be suppressed.

In the end, she threw out the evidence in 10 of the cases, finding that the searches violated the defendants’ constitutional rights. Another 13 were dismissed by prosecutors before the hearings. Typically, defense attorneys challenge such searches pretrial, but in these cases, the attorneys never raised the issue.

Last week, in the first ruling of its kind for New Mexico, the state Supreme Court ruled 4-to-1 that Kennelly hadn’t overstepped her authority and had the inherent power as a judge to raise the suppression issue on her own.

“For more than one hundred years this Court has recognized the authority of courts to act to protect a defendant’s fundamental rights. The district court did not tip the scale of justice; the court merely ensured its balance,” states the opinion in responding to prosecutors who appealed six of the dismissals.

Yet Justice Briana Zamora, in a dissent, contended Kennelly “strayed from (her) role as neutral arbiter into the realm of advocacy. Notwithstanding the district court’s good intentions, these actions constituted an abuse of the court’s discretion and created the appearance of bias or partiality.”

The Supreme Court sent six cases back to the state Court of Appeals for further criminal proceedings.

But the legal battle had taken a toll. In 2023, Kennelly retired at age 47 after serving four years on the bench. She moved from Raton and no longer practices law.

“From a moral perspective, judges and attorneys are obligated to uphold well-established law, not engage in willful blindness when the law is being broken right in front of them by public officials or defend the official wrongdoing,” Kennelly said in a statement to the Journal last week. “Looking the other way is easy; confronting it is uncomfortable and unpopular. I experienced a lot of fallout from confronting it.” She didn’t elaborate.

Marcus Montoya, the 8th Judicial District Attorney based in Taos, told the Journal on Friday that his prosecutors who attended the 30 hearings “didn’t even feel like there was a fair shot at being heard impartially.”

Montoya blamed in part the scarcity of prosecutors and defense attorneys in his rural district, which includes Colfax and Union counties in northeastern New Mexico. With more attorneys and smaller caseloads, there would be more time to look at the facts of each case and weed out bad searches, he said.

“The higher success of valid searches and seizures then increases,” Montoya said. “We are more vulnerable to these issues (of bad searches) because we simply don’t have enough attorneys.”

The defense attorneys involved in the 30 cases were hired by the state Law Offices of the Public Defender but are no longer on contract with the LOPD to represent indigent criminal defendants.

“The Supreme Court has affirmed what has always been true: district judges can step in to protect constitutional rights. We’re pleased that the Supreme Court has clarified this issue,” said LOPD Appellate Defender Kim Chavez Cook.

Kennelly said she did notice some changes after she suppressed the illegally obtained evidence. The public defender contractors started filing more motions to suppress in appropriate cases and one Raton prosecutor initiated dismissals of others, but not all that “clearly stemmed from illegal searches.” And, she said, “the police department appeared to stop the bad behavior.”

Raton Police Chief John Garcia didn’t return requests for comment last week.

Ruling started with child abuse care

The Supreme Court ruling stemmed from the June 2020 arrest of Jennifer Vasquez of Raton, who was charged with possession of a controlled substance and abuse of a child (no death or great bodily harm.)

Raton police responded to a call from Vasquez’s neighbor who reported that she was possibly being beaten by an unknown person and that her juvenile son was screaming for help. But after arriving at her home, they saw her outside with her son, not being beaten or threatened, and they appeared unharmed. After seeing a police car, they retreated into their home and didn’t answer the door when police knocked.

One of the officers threatened to force entry into her home if she didn’t let them in and, according to court records, the officer “further threatened to take Ms. Vasquez’s child away for a 48-hour emergency hold by the state Children, Youth and Families Department, to gain entry.”

Once inside, they spotted a plastic bag on the living room table containing a trace amount of a substance that appeared to be methamphetamine. But officers were looking for her boyfriend, who was wanted on a warrant, and asked to look around the home. Officers later obtained a search warrant from a magistrate judge to search the rest of the home for the boyfriend and drug evidence, based on what they saw earlier.

When they returned they found the boyfriend, Christian Ortega, hiding in a closet, along with a small bag of methamphetamine, “drug paraphernalia, and signs of a dirty house.”

As the case proceeded, Vasquez’s defense attorney, who routinely handled about half of the criminal cases filed in the Colfax County District Court over many years, “didn’t investigate the facts of the case or file a timely motion to suppress the evidence,” Kennelly said.

“The Court takes judicial notes from its case management system that in the previous five years, this particular counsel filed a motion to suppress in only three cases out of the 350 assigned to him within that timeframe, the last being in 2018,” Kennelly wrote in court records.

So Kennelly set a suppression hearing for the defense and prosecutors to consider the warrantless search, but the defense attorney didn’t participate in questioning witnesses and wasn’t able to explain why he had not raised any of the suppression issues on his own.

“The trial court was concerned that a warrantless search of Ms. Vasquez’s house violated her rights, but defense counsel failed to challenge the search,” said Appellate Defender Chavez Cook. “The Supreme Court’s decision reinforces that when a judge identifies a potential constitutional violation that isn’t being addressed, they have the authority to raise the issue and invite the parties to present evidence and arguments on both sides in order to make an informed decision.”

Kennelly, who was appointed by Gov. Michelle Lujan Grisham in 2019, served on the New Mexico Judicial Standards Commission and previously was an attorney for the 8th Judicial District Court. She earned a law degree from the University of New Mexico School of Law in 2010 and had previously been a member of the New Mexico State Bar Ethics Advisory Committee. She served as the first female police officer in the Broadview Heights Police Department in Broadview, Ohio, outside Cleveland.

The Vasquez case was one of 30, which comprised about 20% of her criminal trial docket in Colfax County in August 2021, “in which I have recognized a pattern and practice by one municipal police department of violating indigent citizens’ right to be free from unreasonable search and seizure as a means to address the community’s drug problem,” Kennelly wrote in suppressing the evidence in that case in early 2022.

In a “property functioning adversarial system, defense counsel spots the issue and files a motion to suppress prior to trial, the court conducts a suppression hearing during which the state bears the burden to prove that the search and seizure was reasonable, the court grants the motion to suppress evidence if the State does not meet its burden,” she wrote. Most time, the criminal case is dismissed because “the fruits of the illegal search and seizure cannot be used as evidence at trial.”

But what happens, she asked, in a jurisdiction in which nearly all the criminal defendants are indigent and receive assistance of appointed counsel who routinely fail to raise suppression issues in favor of resolving cases by plea agreements? “The consequences of this combination of systemic failure are dire.”

In a rural county, there might be no alternative defense lawyer representing indigents to take the case.

“Having once been a police officer myself, I recognized a pattern that is a familiar law enforcement tactic within some agencies, targeting certain people in the community, stopping them on unrelated pretenses, and shortcutting legal procedures to find drugs and make arrests,” she wrote in her statement to the Journal.

She said she and other judges had suggested to defense attorneys involved “in a less formal way” that they needed to address the issue but that didn’t happen. Clearing the “fatally flawed cases” from her docket would redirect resources to resolving murders, rapes and other violent crimes.

She said she had expected the district attorney to “handle it differently to look at these cases, acknowledge the illegality, dismiss the tainted officers and train the officers.”

Instead, Kennelly said, Taos-based prosecutors from the office dismissed them and properly acknowledged the illegality, but those from the 8th Judicial District Attorney’s Office based in Raton “chose to fight it.”

“As a result, all kinds of resources have been spent within multiple tribunals on unsuccessfully trying to prove the judge wrong instead of just doing the right thing and fixing the problems,” she said.