{ "id": 4249533, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Raymond Miguel GONZALES, Defendant-Appellant", "name_abbreviation": "State v. Gonzales", "decision_date": "2010-09-28", "docket_number": "No. 28,693", "first_page": "226", "last_page": "234", "citations": [ { "type": "official", "cite": "149 N.M. 226" }, { "type": "parallel", "cite": "247 P.3d 1111" }, { "type": "parallel", "cite": "2011-NMCA-007" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "114 N.M. 103", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731622 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "108", "parenthetical": "declining to consider arguments based on factual allegations that are unsupported by citation to the record proper" }, { "page": "824", "parenthetical": "declining to consider arguments based on factual allegations that are unsupported by citation to the record proper" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0103-01" ] }, { "cite": "2002-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260689 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0657-01" ] }, { "cite": "2005-NMCA-063", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929152 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 34" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0561-01" ] }, { "cite": "2002-NMCA-092", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260673 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0602-01" ] }, { "cite": "2009-NMSC-051", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244764 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 31" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0291-01" ] }, { "cite": "2005-NMCA-045", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929193 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0339-01" ] }, { "cite": "392 U.S. 378", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171487 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "385-87" } ], "opinion_index": 0, "case_paths": [ "/us/392/0378-01" ] }, { "cite": "14 Kan.App.2d 173", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 405032 ], "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "calling into question the precedential value of Taylor and declining to apply the \"extraordinary remedy of exclusion\" for violation of the PCA (internal quotation marks and citation omitted)" }, { "page": "635", "parenthetical": "calling into question the precedential value of Taylor and declining to apply the \"extraordinary remedy of exclusion\" for violation of the PCA (internal quotation marks and citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/kan-app-2d/14/0173-01" ] }, { "cite": "490 F.2d 372", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 228740 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "376-77", "parenthetical": "addressing whether the exclusionary rule is an appropriate remedy for PCA violations and observing that the considerations that require an exclusionary rule in the Fourth Amendment context are not present in the context of a PCA violation" }, { "page": "376", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/490/0372-01" ] }, { "cite": "78 Hawai'i 455", "category": "reporters:state", "reporter": "Haw.", "case_ids": [ 12264945 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "922-23" }, { "page": "923-25" } ], "opinion_index": 0, "case_paths": [ "/haw/78/0455-01" ] }, { "cite": "645 P.2d 522", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10434447 ], "weight": 6, "pin_cites": [ { "page": "524" }, { "page": "524", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "524" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/p2d/645/0522-01" ] }, { "cite": "119 N.M. 370", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561368 ], "weight": 2, "pin_cites": [ { "page": "376" }, { "page": "829" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0370-01" ] }, { "cite": "2000-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106478 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0536-01" ] }, { "cite": "594 F.2d 77", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 512783 ], "year": 1979, "pin_cites": [ { "page": "85", "parenthetical": "declining to address the \"complex and difficult issue\" of whether, under the facts presented, the PCA was violated and, assuming without deciding that there was a violation, concluding that the exclusionary rule was inapplicable" } ], "opinion_index": 0, "case_paths": [ "/f2d/594/0077-01" ] }, { "cite": "117 N.M. 292", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552752 ], "weight": 2, "pin_cites": [ { "page": "293" }, { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0292-01" ] }, { "cite": "21 Yale L. & Pol'y Rev. 383", "category": "journals:journal", "reporter": "Yale L. & Pol'y Rev.", "year": 2003, "pin_cites": [ { "page": "389" } ], "opinion_index": 0 }, { "cite": "46 N.M. 318", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563051 ], "weight": 2, "year": 1942, "pin_cites": [ { "page": "325-26", "parenthetical": "discussing a former New Mexico statute that codified the common law rule making it an indictable offense to refuse a sheriffs call for aid of the posse comitatus" }, { "page": "742-43", "parenthetical": "discussing a former New Mexico statute that codified the common law rule making it an indictable offense to refuse a sheriffs call for aid of the posse comitatus" } ], "opinion_index": 0, "case_paths": [ "/nm/46/0318-01" ] }, { "cite": "141 A.L.R. Fed. 271", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "weight": 3, "year": 1997, "pin_cites": [ { "page": "\u00a7 2" }, { "page": "\u00a7 2" }, { "page": "\u00a7 6" } ], "opinion_index": 0 }, { "cite": "2005-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929212 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0092-01" ] }, { "cite": "2008-NMCA-157", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243451 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0574-01" ] }, { "cite": "1998-NMCA-180", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827398 ], "weight": 15, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 13" }, { "page": "\u00b6 13" }, { "page": "\u00b6 21" }, { "page": "\u00b6\u00b6 14, 21" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0500-01" ] }, { "cite": "18 U.S.C. \u00a7 1385", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "1999-NMCA-074", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257663 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 14" } ], "opinion_index": 1, "case_paths": [ "/nm/127/0452-01" ] }, { "cite": "1999-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257638 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 1, "case_paths": [ "/nm/127/0001-01" ] }, { "cite": "14 Kan.App.2d 173", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 405032 ], "year": 1990, "pin_cites": [ { "page": "634-35", "parenthetical": "refusing to apply the remedy of exclusion for violations of the PCA" } ], "opinion_index": 1, "case_paths": [ "/kan-app-2d/14/0173-01" ] }, { "cite": "490 F.2d 372", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 228740 ], "year": 1974, "pin_cites": [ { "page": "376-77" } ], "opinion_index": 1, "case_paths": [ "/f2d/490/0372-01" ] }, { "cite": "78 Hawai'i 455", "category": "reporters:state", "reporter": "Haw.", "case_ids": [ 12264945 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "922" }, { "page": "922-25", "parenthetical": "applying federal wiretapping authority and the supervisory power of the court" } ], "opinion_index": 1, "case_paths": [ "/haw/78/0455-01" ] }, { "cite": "645 P.2d 522", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10434447 ], "pin_cites": [ { "page": "524", "parenthetical": "applying a case-by-case analysis to determine whether the conduct by law enforcement personnel rises to an intolerable level" } ], "opinion_index": 1, "case_paths": [ "/p2d/645/0522-01" ] }, { "cite": "2000-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106478 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 20" }, { "parenthetical": "alteration omitted" } ], "opinion_index": 1, "case_paths": [ "/nm/128/0536-01" ] }, { "cite": "1998-NMCA-180", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827398 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6\u00b6 14, 21" }, { "page": "\u00b6 21" } ], "opinion_index": 1, "case_paths": [ "/nm/126/0500-01" ] } ], "analysis": { "cardinality": 1220, "char_count": 30564, "ocr_confidence": 0.652, "pagerank": { "raw": 1.2113686816588728e-07, "percentile": 0.5960712381300994 }, "sha256": "330edfdf8d310bcf69ae0388b14c72e541b32ea6f2d2691553898cbf1552d48c", "simhash": "1:f8e3d3027da493fb", "word_count": 4937 }, "last_updated": "2023-07-14T18:48:34.747020+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "I CONCUR: JAMES J. WECHSLER, Judge.", "TIMOTHY L. GARCIA, Judge (concurring in part and dissenting in part)." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Raymond Miguel GONZALES, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nCASTILLO, Judge.\n{1} Defendant was charged with three counts of drug trafficking as a result of an investigation carried out by the United States Air Force Office of Special Investigations (OSI) at Cannon Air Force Base (the Base). Defendant moved for dismissal of the charges on grounds that the OSI\u2019s investigation violated the federal Posse Comitatus Act (the PCA), 18 U.S.C. \u00a7 1385 (1994). As explained in greater detail in the body of this opinion, the PCA places limitations on the degree to which the United States military may participate in local law enforcement efforts. See State v. Cooper, 1998-NMCA-180, \u00b6 14, 126 N.M. 500, 972 P.2d 1. The district court concluded that the OSI investigation did not violate the PCA and denied the motion to dismiss. Defendant appeals and argues that the district court erred in concluding that the PCA was not violated and claims that he received ineffective assistance of counsel. We reject both assertions, and we affirm.\nI. BACKGROUND\n{2} Defendant was charged with three counts of distributing methamphetamine in violation of NMSA 1978, Section 30-31-20(A)(2) (2006). These charges stemmed from a sting operation carried out by the OSI. On the morning of trial, Defendant made an oral motion for dismissal of the charges based on the assertion that the OSI\u2019s investigation violated the PCA. The district court took the motion under advisement and indicated that the issue would be revisited at trial and after the facts underlying the charges were more fully developed. A summary of the pertinent evidence presented at trial follows.\n{3} Jason McMackin (McMackin), an agent with the OSI at the Base, was in charge of the investigation of Defendant. At the time of Defendant\u2019s trial, McMackin had served in the military for more than eight years and had focused on narcotics investigations for the last three of those years. One of the OSI\u2019s responsibilities is to ensure the safety of military personnel at the Base. This entails periodic assessments of potential narcotics sources in the community surrounding the Base.\n{4} The investigation into Defendant began when the OSI received reports that airmen were obtaining narcotics from a local business named Solar Shield. During the investigation, McMackin utilized the services of a confidential informant, airman Dustin Maples (Maples), who had a part-time job at Solar Shield. Defendant\u2019s uncle, who also worked at Solar Shield, informed Maples that Defendant could procure narcotics for Maples. Defendant\u2019s uncle arranged several meetings between Maples and Defendant, and during those meetings Defendant sold Maples methamphetamine. These transactions were monitored by McMackin and other OSI agents.\n{5} After each transaction, Maples turned over the methamphetamine he purchased from Defendant to McMackin. After receiving the methamphetamine, McMackin performed field tests and sent the drugs to the United States Army Criminal Investigation Laboratory. McMackin\u2019s field tests confirmed that the drugs were indeed methamphetamine, and the military forensic examiner who evaluated the drugs at the Army lab also confirmed this conclusion.\n{6} There was no testimony presented at trial regarding when, under what circumstances, and by whom Defendant was arrested, nor is there discussion of these facts in the parties\u2019 submissions. McMackin testified only that the OSI conducts monthly reviews with either the Clovis Police Department, the New Mexico State Police, or the Region Five task force. He explained that when one of these law enforcement agencies has interest in one of OSI\u2019s targets, OSI passes that case off to the agency. Prior to trial, there was some discussion in chambers regarding the \u201cmingling\u201d of local, federal, and military law enforcement in the investigation of Defendant. Specifically, the State proffered that both the Clovis Police Department and the federal Drug Enforcement Agency were involved.\n{7} After the State rested its case at trial, Defendant renewed his motion to dismiss under the PCA. The district court denied the motion. The court concluded that the PCA had not been violated because \u201cthere was an appropriate military interest\u201d that justified the OSI\u2019s investigation of Defendant. Defendant was convicted on all three trafficking charges.\nII. DISCUSSION\n{8} On appeal, Defendant raises two issues. First, he argues that the district court erred in denying his motion to dismiss because the OSI investigation violated the PCA. Defendant asserts that, as a consequence of the PCA violation, this Court must overturn his conviction and dismiss the charges against him. Second, Defendant argues that he received ineffective assistance of counsel at trial because the PCA violation was raised for the first time on the day of trial. We review both claims de novo. See State v. Mondragon, 2008-NMCA-157, \u00b6 6, 145 N.M. 574, 203 P.3d 105 (reviewing de novo a defendant\u2019s claim that the trial court erred as a matter of law in denying his motion to dismiss); State v. Boergadine, 2005-NMCA-028, \u00b6 33, 137 N.M. 92, 107 P.3d 532 (\u201cThe standard of review for claims of ineffective assistance of counsel is de novo.\u201d). We address each issue in turn.\nA. The PCA\n{9} The text of the PCA states:\nWhoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.\n18 U.S.C. \u00a7 1385. \u201cThe term \u2018posse comitatus\u2019 ([which means literally the] \u2018power of the county\u2019) denotes a sheriffs common law authority to command the assistance of able-bodied citizens in order to enforce the law.\u201d Brian L. Porto, Annotation, Construction and Application of Posse Comitatus Act (18 U.S.C.A \u00a7 1885), and Similar Predecessor Provisions, Restricting Use of United States Army and Air Force to Execute Laws, 141 A.L.R. Fed. 271 \u00a7 2[a] (1997); see, e.g., Eaton v. Bernalillo County, 46 N.M. 318, 325-26, 128 P.2d 738, 742-43 (1942) (discussing a former New Mexico statute that codified the common law rule making it an indictable offense to refuse a sheriffs call for aid of the posse comitatus).\n{10} \u201cAlthough British common law considered military personnel eligible to assist law enforcement, the American tradition has been to limit the role the military could play on the domestic scene.\u201d Sean J. Kealy, Reexamining the Posse Comitatus Act: Toward a Right to Civil Law Enforcement, 21 Yale L. & Pol\u2019y Rev. 383, 389 (2003). \u201cThis tradition reflects an American concern, formed well before the Revolution, about the dangers of using a standing army to keep civil peace\u201d and \u201c[t]his tradition was codified in 1878 with the [PCA], which forbade the use of the Army to execute the laws or to provide aid to civil authorities in the enforcement of civilian laws.\u201d Id.; see also Cooper, 1998-NMCA-180, \u00b6 13, 126 N.M. 500, 972 P.2d 1 (\u201c[U]nderlying the PCA is the continuing recognition of the threat to civil liberties caused by the use of military personnel to execute civilian laws.\u201d).\n{11} The PCA does precisely what the text of the statute indicates. The PCA \u201cmakes it a criminal offense, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, to willfully use any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws[.]\u201d Cooper, 1998-NMCA-180, \u00b6 13, 126 N.M. 500, 972 P.2d 1 (internal quotation marks and citation omitted). Courts have employed varying tests to determine when and under what circumstances the PCA is violated. Id. \u00b6 14. In Cooper, we adopted the test that has been recognized by most courts: \u201c[W]here military involvement is limited and does not invade the traditional functions of civilian law enforcement officers, such as in making arrests, conducting searches or seizing evidence, the coordination of military efforts with those of civilian law enforcement does not violate the PCA.\u201d Id.\n{12} As described above, the district court\u2019s conclusion that the OSI\u2019s investigation of Defendant did not violate the PCA was premised on the finding that there was an appropriate military interest underlying the investigation. Whether an appropriate military interest existed to justify the OSI\u2019s investigation of Defendant does not resolve the question of whether that investigation violated the PCA. As discussed above, the pertinent inquiry is whether the OSI\u2019s involvement in the investigation of Defendant was limited and, thus, did not invade the traditional functions of civilian law enforcement. Id. Because the district court employed the wrong legal standard in assessing the merits of Defendant\u2019s claim, we cannot affirm this ease on the basis that the OSI\u2019s investigation did not violate the PCA. Nevertheless, \u201c[a]n appellate court will affirm a lower court\u2019s ruling if right for any reason.\u201d Westland Dev. Co. v. Romero, 117 N.M. 292, 293, 871 P.2d 388, 389 (Ct.App.1994).\n{13} In Cooper, this Court made clear that, even where a violation of the PCA is established, \u201ccourts have uniformly held that the exclusionary rule still does not apply unless it can be shown that, based on widespread and repeated violations of the [PCA], the evidence should be suppressed for deterrent purposes.\u201d Cooper, 1998-NMCA-180, \u00b6 21, 126 N.M. 500, 972 P.2d 1. Even if we were to assume without deciding that the PCA was violated in this case, Defendant presented no evidence of widespread and repeated violations and, therefore, Defendant was not and is not entitled to exclusion of the evidence obtained by the OSI through their investigation, dismissal of the charges against him, or any other relief. Cf. United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979) (declining to address the \u201ccomplex and difficult issue\u201d of whether, under the facts presented, the PCA was violated and, assuming without deciding that there was a violation, concluding that the exclusionary rule was inapplicable). Defendant failed to prove he was entitled to any relief. Accordingly, we reject Defendant\u2019s argument that the district court erred in denying his motion to dismiss.\n{14} Our focus on the second requirement in Cooper works no unfairness on Defendant. See Meiboom v. Watson, 2000-NMSC-004, \u00b6 20, 128 N.M. 536, 994 P.2d 1154 (recognizing that an appellate court will not affirm a ruling on a ground not relied upon by the district court if reliance on the new ground would be unfair to the appellant). Defendant\u2019s motion to dismiss for violation of the PCA was based on Cooper. Cooper requires that a defendant prove two elements: First that the PCA was violated and second that there were widespread and repeated violations of the PCA. Cooper, 1998-NMCA-180, \u00b6\u00b6 14, 21, 126 N.M. 500, 972 P.2d 1. The burden was upon Defendant to prove both elements. See 141 A.L.R. Fed. 271, \u00a7 2[b]. Defendant failed to submit evidence bearing on the question of his entitlement to relief and, thus, it is not unfair to hold this failure against Defendant. Cf. Eldin v. Farmers Alliance Mut. Ins., 119 N.M. 370, 376, 890 P.2d 823, 829 (Ct.App.1994) (declining to apply the right for any reason doctrine on grounds that it would be unfair to appellant who did not receive notice below of the grounds upon which the right for any reason doctrine was asserted on appeal).\n{15} Recognizing that he did not prove the second element in Cooper, Defendant argues on appeal that we should revisit our conclusions in Cooper concerning the applicability of the exclusionary rule in the context of the PCA. Specifically, Defendant contends that \u201ccourts faced with egregious violations of the PCA have found it justifiable to apply an exclusionary rule without waiting for additional violations of the [PCA] to materialize\u201d and argues that we should do the same. In support of this assertion, Defendant directs us to Taylor v. State, 645 P.2d 522 (Okla. Crim.App.1982), and State v. Pattioay, 78 Hawai'i 455, 896 P.2d 911 (1995). We examine these cases below, but first clarify why the exclusionary rule has only limited applicability in the PCA context.\n{16} Courts have cited at least three reasons for the conclusion that the exclusionary rule is a remedy for only a narrow subset of PCA violations. First, the PCA, where applicable, provides criminal and monetary sanctions for any violations; the exclusion of evidence is not mentioned as a remedy. Taylor, 645 P.2d at 524. \u201cSecondly, the potential abuses of the [PCA] obviously are not of the same magnitude, neither qualitatively nor quantitatively, as violations under the Fourth Amendment.\u201d Id.; see United States v. Walden, 490 F.2d 372, 376-77 (4th Cir. 1974) (addressing whether the exclusionary rule is an appropriate remedy for PCA violations and observing that the considerations that require an exclusionary rule in the Fourth Amendment context are not present in the context of a PCA violation). As one commentator pointed out, courts have held that \u201ca PCA violation does not amount to a constitutional violation and therefore neither dismissal of the charges nor the exclusionary rule is an appropriate remedy.\u201d Kealy, supra, at 406. Third, and \u201c[f]inally, the [PCA] expresses a policy that is for the benefit of the people as a whole, but not one that may be characterized as expressly designed to protect the personal rights of defendants.\u201d Taylor, 645 P.2d at 524 (internal quotation marks and citation omitted). In other words, the PCA \u201cdoes not provide that the criminal is to go free because the constable has blundered.\u201d Walden, 490 F.2d at 376 (internal quotation marks and citation omitted). For the foregoing reasons, we reaffirm our support for the conclusion in Cooper that the exclusionary rule is not a per se remedy for PCA violations but, rather, it is only available where the particular PCA violation at issue is part of a widespread and repeated pattern of such violations and exclusion is necessary for purposes of deterrence.\n{17} Neither Taylor nor Pattioay persuades us to abandon our support for this conclusion. In Taylor, the Court of Criminal Appeals of Oklahoma first established that \u201cviolations of the [PCA] do not warrant invocation of an exclusionary rule.\u201d Taylor, 645 P.2d at 524. However, the court went on to state that \u201cit does not necessarily follow that all evidence obtained in violation of the [PCA] will be admissible\u201d and that the court would \u201cexamine each case involving a violation of the [PCA] and determine whether the illegal conduct by the law enforcement personnel rises to an intolerable level as to necessitate an exclusion of the evidence resulting from the tainted arrest.\u201d Id. Examining the facts in that case, the court found that the military intervention was \u201cexcessive,\u201d could not \u201cbe condoned,\u201d and, thus, concluded that the exclusionary rule applied. Id. at 525. We decline to adopt the analysis embraced in Taylor as it is inconsistent with the conclusion in Cooper that the exclusionary rule applies only when there is evidence of widespread and repeated violations of the PCA. We are unwilling to carve out further exceptions that would permit application of the exclusionary rule based on the intolerableness or severity of the alleged PCA violation. Cf. State v. Roberts, 14 Kan.App.2d 173, 786 P.2d 630, 635 (1990) (calling into question the precedential value of Taylor and declining to apply the \u201cextraordinary remedy of exclusion\u201d for violation of the PCA (internal quotation marks and citation omitted)).\n{18} In Pattioay, the Supreme Court of Hawaii similarly recognized that \u201c[t]he conclusion that the PCA was violated does not lead inexorably to a ruling that [a defendant is] entitled to the remedy of suppression\u201d and that \u201ccourts have generally found that creation or application of an exclusionary rule is not warranted\u201d where a violation of the PCA is established. Pattioay, 896 P.2d at 922-23. Nonetheless, the court held that evidence obtained in violation of the PCA and then proffered in criminal proceedings against a defendant must be suppressed. Id. at 925. The Supreme Court of Hawaii cited two grounds as support for this conclusion: (1) Lee v. Florida, 392 U.S. 378, 385-87, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968), where the United States Supreme Court held that recordings obtained by intercepting a defendant\u2019s telephone conversations in eontravention of federal law were subject to the exclusionary rule; and (2) the Supreme Court of Hawaii\u2019s supervisory powers in the administration of criminal justice in the courts of Hawaii. Pattioay, 896 P.2d at 923-25.\n{19} We are not persuaded that Pattioay calls into question what we said in Cooper. Lee was decided in 1968 and, since then, various federal courts have examined the issue of the applicability of the exclusionary rule in the PCA context. See 141 A.L.R. Fed. 271, \u00a7 6 (summarizing cases where the exclusionary rule was held an inappropriate remedy for a PCA violation). To our knowledge, Lee has not been cited as a basis for extending the exclusionary rule as a per se remedy for PCA violations by any other court except the Supreme Court of Hawaii. See id.; Kealy, supra, at 405-08. Additionally, Defendant has failed to explain how the independent state grounds cited by the Supreme Court of Hawaii are relevant in New Mexico, and this Court has no duty to review an argument that is not adequately developed. Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, \u00b6 15, 137 N.M. 339, 110 P.3d 1076.\n{20} In his dissent, Judge Garcia would have us remand for a new trial because, in his view, the \u201cdistrict court inappropriately thwarted Defendant\u2019s opportunity to present factual evidence regarding potential widespread and repeated violations of the [PCA].\u201d Dissenting Opinion \u00b6 35. The record shows otherwise.\n{21} As discussed above, the district court took under advisement Defendant\u2019s pretrial motion to dismiss for violation of the PCA and instructed the parties that the motion would be revisited both at the end of the State\u2019s case and at the end of Defendant\u2019s case. Defendant renewed the motion to dismiss after the State rested. Based on his contentions that local law enforcement\u2019s involvement was very limited and that the investigation was almost entirely a military operation, Defendant argued that the PCA had been violated.\n{22} The district court correctly acknowledged that the PCA prohibits the military from \u201ctaking over\u201d and conducting civilian police affairs, but the court\u2019s focus was the military purpose underlying the investigation. In light of the court\u2019s comments, the State asked to reopen its case to submit additional evidence regarding the purpose of the investigation. Defendant did not object and reviewed his version of the evidence after which the court granted the State\u2019s request.\n{23} After hearing the additional evidence, the court denied Defendant\u2019s motion. The court then inquired whether Defendant intended to present any further evidence. Defendant rested.\n{24} The foregoing demonstrates that the district court did nothing to prevent or limit Defendant\u2019s ability to present evidence material to the two prongs of Cooper. Any failure to develop the record regarding widespread and repeated violations is attributable to Defendant and, not as Judge Garcia concludes, to the district court. Moreover, Defendant does not argue on appeal that he was denied the opportunity to present evidence or that had he been allowed to present more evidence, he could have shown that there were potential widespread and repeated violations of the PCA. Our case law does not permit us to make this argument for Defendant. See State v. Correa, 2009-NMSC-051, \u00b6 31, 147 N.M. 291, 222 P.3d 1 (\u201cOn appeal, issues not briefed are considered abandoned, and we do not raise them on our own.\u201d). Defendant instead urges us to modify Cooper and eliminate the requirement that a defendant show widespread and repeated violations. We have already addressed this argument and rejected it. To remand in this circumstance would allow Defendant a second bite at the proverbial apple. See State v. Curry, 2002-NMCA-092, \u00b6 21, 132 N.M. 602, 52 P.3d 974 (affirming denial of motion for new trial thus rejecting the defendants attempt to \u201ctake another bite at the apple.\u201d). This we cannot do.\n{25} For the foregoing reasons, we reject Defendant\u2019s assertion that the district court erred in denying his motion to dismiss. We proceed to Defendant\u2019s ineffective assistance of counsel claims.\nB. Ineffective Assistance of Counsel\n{26} The law governing ineffective assistance of counsel claims in New Mexico is well settled.\nTo establish a prima facie ease of ineffective assistance of counsel, Defendant must show that (1) counsel\u2019s performance was deficient in that it fell below an objective standard of reasonableness; and (2) that Defendant suffered prejudice in that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\nState v. Aker, 2005-NMCA-063, \u00b6 34, 137 N.M. 561, 113 P.3d 384 (internal quotation marks and citation omitted).\nWhen an ineffective assistance claim is first raised on direct appeal, we evaluate the facts that are part of the record. If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition, although an appellate court may remand a case for an evidentiary hearing if the defendant makes a prima facie case of ineffective assistance.\nState v. Roybal, 2002-NMSC-027, \u00b6 19, 132 N.M. 657, 54 P.3d 61.\n{27} Defendant\u2019s ineffective assistance of counsel claim is based on two grounds. We address each in turn. First, he asserts that trial counsel was ineffective because counsel raised the issue of the PCA violation in an untimely fashion, i.e., the morning of the trial. The State responds that the timing of the motion is inconsequential in light of the fact that Defendant was not entitled to a remedy even if he had prevailed in proving a violation of the PCA and, therefore, cannot prove that the timing of the motion prejudiced him in any way. We agree with the State.\n{28} As discussed above, there was no evidence presented that the OSI\u2019s investigation of Defendant was part of widespread and repeated violations of the PCA, and Defendant was not and is not entitled to any relief. Accordingly, Defendant cannot prove that the timing of the motion caused him prejudice. Regardless of when the motion was submitted, it would not have affected the proceedings. As Defendant cannot prove that he was prejudiced due to the timing of the motion, this argument is inadequate to prove a prima facie case of ineffective assistance of counsel.\n{29} The second ground upon which Defendant bases his ineffective assistance of counsel claim concerns the fact that the State amended the charges against Defendant both the day before trial and at trial. Defendant argues that trial counsel was ineffective in failing to realize and act upon the charging errors. Defendant submits a variety of claims to support this argument. He claims that, had trial counsel recognized the charging error, plea negotiations would have proceeded differently and he may have altered his decision to go to trial. He then claims that the error with the charges may have affected the jury\u2019s deliberations; Next, he claims that trial counsel\u2019s failure to recognize the charging error establishes that trial counsel \u201cdid little or nothing\u201d to represent Defendant\u2019s interests in violation of the rules of professional conduct. Finally, Defendant objects that trial counsel also failed to file pleadings and did not attend pretrial hearings.\n{30} We are unpersuaded by these arguments. Defendant has not cited record evidence that plea negotiations ever took place, and we do not, therefore, need to consider what Defendant would have done differently at those alleged negotiations. See Santa Fe Exploration Co. v. Oil Conservation Comm\u2019n, 114 N.M. 103, 108, 835 P.2d 819, 824 (1992) (declining to consider arguments based on factual allegations that are unsupported by citation to the record proper). Furthermore, no record citations were provided to substantiate Defendant\u2019s claim that defense counsel failed to attend pretrial hearings and, thus, we also decline to consider this contention. See id. Aside from Defendant\u2019s unsupported and speculative suggestion, there is no evidence that the charging error had any effect on the jury. See id. That defense counsel failed to recognize that there was something amiss with the charges, a problem the State later remedied, does not establish that defense counsel did nothing to represent Defendant\u2019s interests. Finally, it is not clear how the absence of pleadings proves that defense counsel was ineffective. See Headley, 2005-NMCA-045, \u00b6 15, 137 N.M. 339, 110 P.3d 1076 (\u201cWe will not review unclear arguments, or guess at what [a party\u2019s] arguments might be.\u201d).\nIII. CONCLUSION\n{31} For the foregoing reasons, we affirm.\n{32} IT IS SO ORDERED.\nI CONCUR: JAMES J. WECHSLER, Judge.\nTIMOTHY L. GARCIA, Judge (concurring in part and dissenting in part).", "type": "majority", "author": "CASTILLO, Judge." }, { "text": "GARCIA, Judge\n(concurring in part and dissenting in part).\n{33} I agree with the majority regarding its determination that the district court erred when it ruled that the PCA did not apply because an appropriate military interest existed to justify the OSI\u2019s investigation. I write to respectfully dissent from the majority decision to apply the right for any reason doctrine that resulted in an affirmance of the lower court ruling on other grounds.\n{34} This Court will only apply a right for any reason doctrine when our reliance on new grounds would not be unfair to appellant. Meiboom, 2000-NMSC-004, \u00b6 20, 128 N.M. 536, 994 P.2d 1154. On appeal, however, this Court \u201cwill not assume the role of the trial court and delve into ... fact-dependent inquiries.\u201d Id. (alteration omitted) (internal quotation marks and citation omitted). We have specifically refrained from doing so \u201cin the absence of any substantial evidence supporting what would be the right reason.\u201d Allsup\u2019s Convenience Stores, Inc. v. N. River Ins. Co., 1999-NMSC-006, \u00b6 20, 127 N.M. 1, 976 P.2d 1 (filed 1998). \u201cTo do so without allowing [the pjlaintiffs the opportunity to develop the record ... [regarding] factual allegations would work undue prejudice upon them.\u201d Pinnell v. Bd. of County Comm\u2019rs, 1999-NMCA-074, \u00b6 14, 127 N.M. 452, 982 P.2d 503. A finding of prejudice to the appellant is \u201cespecially apparent in [a] case [where the other party] never explicitly raised the issue below.\u201d Id.\n{35} In this case, the district court incorrectly ruled that the PCA did not apply by failing to recognize the appropriate test established in Cooper, 1998-NMCA-180, \u00b6 14, 126 N.M. 500, 972 P.2d 1, and failing to take any evidence regarding widespread and repeated violations of the Act, id. \u00b6 21. By ruling that the PCA did not apply at the close of the State\u2019s evidence during trial, the district court inappropriately thwarted Defendant\u2019s opportunity to present factual evidence regarding potential widespread and repeated violations of the Act. Evidence regarding whether any widespread and repeated violations of the Act factually existed was not presented by either party prior to the district court\u2019s premature and incorrect ruling on the PCA defense. This failure to develop the record or allow Defendant to proceed with his evidence before ruling on the applicability of the PCA was unfair and prejudicial.\n{36} It is clear that the PCA is an obscure and unique statutory provision that only applies to a rare number of cases. See id. \u00b6 14; see also Pattioay, 896 P.2d at 922. The fact that Defendant did not discover or present this potential defense until the day before trial supports its obscurity. The additional time taken by the district court to familiarize itself with the Act also confirms how rarely our district courts deal with the PCA. Under these circumstances and the misapplication of the Act during trial, it is unfair to Defendant for this Court to utilize its position of careful scholarly review to affirm on grounds that were not raised or addressed below. See Pinnell, 1999-NMCA-074, \u00b6 14, 127 N.M. 452, 982 P.2d 503.\n{37} The majority also noted that the PCA has not been recognized to create a Fourth Amendment protection. Walden, 490 F.2d at 376-77; Kealy, supra, at 406. As a result, various jurisdictions addressing the Act have applied different evidentiary rules and standards for analyzing whether evidence obtained in violation of the PCA should be excluded. See Pattioay, 896 P.2d at 922-25 (applying federal wiretapping authority and the supervisory power of the court); Roberts, 786 P.2d at 634-35 (refusing to apply the remedy of exclusion for violations of the PCA); Taylor, 645 P.2d at 524 (applying a case-by-case analysis to determine whether the conduct by law enforcement personnel rises to an intolerable level); Cooper, 1998-NMCA-180, \u00b6\u00b6 14, 21, 126 N.M. 500, 972 P.2d 1 (applying the exclusionary rule as a deterrent based upon widespread and repeated violations of the PCA). New Mexico appears to be one of the only states where a standard of reasonableness regarding the actions by law enforcement is not a consideration in determining whether evidence seized as a result of a violation of the PCA should be excluded. Cooper, 1998-NMCA-180, \u00b6 21, 126 N.M. 500, 972 P.2d 1.\n{38} Defendant has asked this Court to reconsider whether egregious violations of the PCA should be deemed sufficient to apply an exclusionary rule. Until available evidence regarding any widespread and repeated violations of the PCA has been presented to the district court, this Court should not place itself in the position of reconsidering Cooper and considering a new exclusionary rule for PCA violations. As a result, this case should be remanded to the district court for a new trial. Defendant should also be allowed to present any evidence for consideration of whether the PCA applies and whether any evidence seized should be excluded.", "type": "concurring-in-part-and-dissenting-in-part", "author": "GARCIA, Judge" } ], "attorneys": [ "Gary K. King, Attorney General, Andrea Sassa, Assistant Attorney General, Santa Fe, NM, for Appellee.", "Albright Law & Consulting, Jennifer R. Albright, Albuquerque, NM, for Appellant." ], "corrections": "", "head_matter": "2011-NMCA-007\n247 P.3d 1111\nSTATE of New Mexico, Plaintiff-Appellee, v. Raymond Miguel GONZALES, Defendant-Appellant.\nNo. 28,693.\nCourt of Appeals of New Mexico.\nSept. 28, 2010.\nCertiorari Denied, Dec. 16, 2010, No. 32,684.\nGary K. King, Attorney General, Andrea Sassa, Assistant Attorney General, Santa Fe, NM, for Appellee.\nAlbright Law & Consulting, Jennifer R. Albright, Albuquerque, NM, for Appellant." }, "file_name": "0226-01", "first_page_order": 252, "last_page_order": 260 }