NEW MEXICO APPELLATE COURTS IMPOSE SERIOUS RESTRICTIONS ON LAW ENFORCEMENT

In 1914, the United States Supreme Court imposed the exclusionary rule on federal law enforcement. The case was Weeks v. United States. The Court ruled that evidence obtained in violation of the United States Constitution is to be excluded from evidence. "The constable blunders and the murderer goes free." The ruling did not apply to the States, and the States were free to have an exclusionary rule or not.

That rule was in effect from 1914 until 1961. At that time, in Mapp v. Ohio (1961), the United States Supreme Court ruled that evidence obtained in violation of the federal constitution (Fourth Amendment, principally), must be excluded in State criminal trials as well as federal criminal trials. The ruling was unrealistic, unreasonable, and in many instances has led to gross miscarriages of justice. The Deputy Sheriff of some rural county may make a good faith mistake in the law of search and seizure (a body of law that is extremely complex), and a killer goes free.

An immediate result of the Mapp case was that law enforcement officers were tempted to lie (not to convict the innocent, but to preserve clear evidence of guilt). For example, in the years immediately following 1961, the States had a raft of so-called "dropsy cases." Those were cases in which the officers testified that the accused "dropped" the evidence, that is, abandoned the evidence; hence there was no search at all; and of course, no illegal search.

We prosecuted and defended felony cases in New Mexico before and after 1961; and we are satisfied that perjury among law enforcement officers was rampant (with regard to compliance with federal constitutional requirements). These were officers who would never consider perjury with respect to guilt or innocence. These were disillusioned officers, whose morale had been shattered by what they considered to be a grossly erroneous excess of power by the Earl Warren Court. The New Mexico Courts had to follow suit, as the federal constitution (as interpreted) is supreme.

New Mexico did not have an exclusionary rule in 1914, when the federal exlusionary rule was adopted by the Supreme Court; nor did New Mexico adopt an exclusionary rule for State criminal trials, until forced to by the Mapp case in 1961. After the Mapp case in 1961, in New Mexico we could and did follow the federal rule and we went no further in excluding evidence on constitutional grounds. That was until the 1990's.

To be concluded.