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High Court Defines ‘Seizure’

High Court Defines ‘Seizure’

In a unanimous opinion released Feb. 25 by the New Mexico Supreme Court, a seizure by police occurs when they take your possessions away from you

When Does a Drug Seizure Actually Occur?


If the cops impound your car one day but don’t find the pot and cash in it until more than a month later, when did they actually seize all that?

The day they impounded your car?

Or the day they got a warrant and finally got around to entering it and finding your cash and stash?

According to a unanimous opinion released Feb. 25 by the New Mexico Supreme Court, a seizure by police occurs when they take your possessions away from you.

The State of New Mexico apparently thought otherwise.

The opinion written by Justice Judith Nakamura came in the case of Norman Benally, who was arrested by Gallup police on June 23, 2011, after being pulled over for driving his Cadillac Escalade with a broken headlight. During the stop, the officer smelled marijuana, a drug dog confirmed the presence of drugs in the car, and Benally’s car was impounded.

Police obtained a search warrant on July 28 to allow them to search the car. The following day they opened the vehicle to find it contained $1,295 in cash, drug paraphernalia and 586.7 grams, or about a pound and a quarter, of marijuana.

Benally was charged with drug possession with intent to distribute, conspiracy and possession of drug paraphernalia. His public defender eventually filed a motion arguing that the seizure was invalid because it occurred more than 30 days after the stop by Gallup police.

The New Mexico Court of Appeals ruled the search came too late, but the New Mexico Attorney General’s office argued that the 30-day clock should have started only when police opened the car and found the money.

The seizure statute has since been changed by the Legislature, but the Supreme Court found that the plain meaning of “seizure” means the time a person’s possessions are taken from them and not when police finally discover and itemize what they had seized.

Breaking and Entering Defined

In a second case, the high court ruled that breaking and entering occurs when an accused reaches behind a window screen with the intent of illegally entering a home.

The Court of Appeals upheld the validity of the charge against Anthony Holt who in 2011 was in the process of removing a window screen when the homeowner inside the house spotted him through the window. Holt ran away but was caught and charged and convicted in Doña County of breaking and entering.

Holt’s attorneys argued that prosecutors overcharged the case because Holt had not actually entered the homeowner’s property. A panel of the New Mexico Court of Appeals found otherwise, although one judge agreed with Holt’s attorney that Holt never actually got inside the house. He should have been charged with the lesser charge of attempted breaking and entering or attempted burglary.

The high court upheld Holt’s conviction, agreeing with the majority opinion of the Court of Appeals panel. The high court found that “in the process of removing the screen, he placed his fingers behind the screen and inside the outer boundary of the home.”

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Dan Vukelich is a writer and former editor of ABQ Free Press.

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  • eddie
    March 1, 2016, 12:57 pm

    it would be nice if you included the statute chapter, article, and section. thank you !

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Dennis Domrzalski is managing editor of ABQ Free Press. Reach him at dennis@freeabq.com.

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