The motion will argue that the affidavit requesting the order to allow APD to take two pounds of cocaine, crack cocaine, heroin and methamphetamines out of its evidence room to sell to the public contained false information.
The Public Defender’s Office Files to Halt the Reverse Sting Operations
BY DENNIS DOMRZALSKI
The New Mexico Public Defender’s Office on Thursday filed a motion to quash an affidavit and court order that allows the Albuquerque Police Department to take illegal drugs out of its evidence room and sell them to people in reverse sting operations.
The motion to vacate the Feb. 25 “Reversal operation” was filed in state District Court in Albuquerque by Richard Pugh, head public defender for the Second Judicial District. The motion argues that the affidavit requesting the order to allow APD to take two pounds of cocaine, crack cocaine, heroin and methamphetamines out of its evidence room to sell to the public contained false information and authorized APD to sell and manufacture illegal drugs, which is a violation of state law.
APD’s affidavit said the document was being presented “through its Assistant District Attorney.” But no ADA signed or initialed the affidavit, the Public Defender’s motion said.
“If, in fact and as claimed, the movant was the State of New Mexico as represented by its Assistant District Attorney, then the Motion, to be proper, had to have been signed by an actual Assistant District Attorney, and also had to state the actual Assistant District Attorney’s address and telephone number,” the motion said. “Although at the end of the Motion there is a line for a signature with the typewritten words ‘Assistant District Attorney’ below it, there is in fact no signature of an individual attorney (nor of anyone else), and neither is there an address nor a telephone number for any individual attorney.”
The motion also said that the judge who signed the order granting APD to take the drugs out of its evidence room had no jurisdiction in the matter because no complaint had actually been filed. And, the affidavit requesting the order to remove drugs from evidence said that making it known that drug users were being arrested in certain areas would reduce the demand for drugs in the city. But, the PD’s motion said APD never made any attempt to publicize the arrests that occurred during a reverse sting operation near Central and Pennsylvania Northeast on May 10.
“APD made no attempt to make ‘well known’ the arrests of drug purchasers,” the PD’s motion said. “Absent affirmative efforts to make these arrests – or even potential arrests – ‘well known,’ APD was conducting an operation which did not meet the conditions set forth in the Motion as necessary for the operation’s effectiveness.”
The motion also said that the Feb. 25 order allows APD to sell and manufacture illegal drugs in violation of state law, which grants no exceptions to law enforcement agencies. “Undersigned counsel knows of no authority or jurisdiction vested in the District Court that allows the Court to declare illegal activity to be legal activity, and the Motion cites none,” the PD’s motion said.
On Wednesday, Bernalillo County District Attorney Kari Brandenburg told ABQ Free Press that her office never signed off on the affidavit and was never consulted by APD about it. “We have confirmed that our office did not sign off on, or consult the police department on the affidavit and order of February 25th,” Brandenburg said.
If the order is vacated, it would stop, at least for now, the reverse sting operations. And it could potentially lead to dismissal of fourth-degree felony charges that have been filed against six people who have been arrested for drug possession so far in the reverse sting operations.
Brandenburg added that drug cases being prosecuted under the reverse sting operation authorized by the affidavit could now be challenged because the affidavit isn’t true. “It certainly gives lie for challenge that the affidavit is untrue, that it has information that is inaccurate, and therefore, isn’t valid.” Brandenburg said.
The PD’s motion concluded: “Because the Motion does not comply with pleading requirements, because the District Court lacked jurisdiction to consider the Motion or issue the Order, because the Motion contains apparently false statements, because the Motion makes unsubstantiated allegations about the expected effectiveness of the Order, because the Order authorizes illegal activity without authority or jurisdiction to do so; because the implementation of the Order violates the conditions precedent presented as justifications for the Order; and because the relief provided by the Order has been proven to be ineffective, the Law Offices of the Public Defender moves this Court to quash the Order issued in this matter on February 25, 2016.”
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