By Scott Sandlin
The Albuquerque Journal
ALBUQUERQUE, N.M. -- A Tijeras man accused of raping an 8-yearold boy and filming it while the child tried to get away is one step closer to freedom.
State District Judge Denise Barela Shepherd ruled this week that Bernalillo County sheriff’s deputies had gone too far in searching the Tijeras home of Joseph Martinez, former vice president of an Albuquerque road-striping firm, in April 2009.
Because the search was illegal, the evidence seized by deputies cannot be used at trial, the judge ruled, seriously undermining the state’s ability to continue prosecuting the case against the 52-year-old Martinez, who is being held without bond on related federal charges.
“This is a great victory for the Constitution and specifically for the Fourth Amendment,” Martinez attorney Sam Bregman said of the latest ruling. “Again, it reflects the fact that the Constitution does not bend based on the seri- ousness of the allegations.”
The search was based on a 911 call in which no one was on the line, and an unlocked sliding door deputies found at Martinez’s 3,000-to 4,000-square-foot home in the East Mountains.
The officers had no warrant, and case law on searches generally says officers who lack a warrant signed by a judge for a premises search must show special circumstances or evidence of an emergency.
“A static 911 call is not evidence of an exigency such that a warrantless entry into a home is justified,” Barela Shepherd wrote in an opinion filed this week.
Barela Shepherd’s ruling in the state case, in which Martinez is charged with dozens of counts of criminal sexual penetration of a child, sexual exploitation of children and possession of marijuana, is similar in facts and reasoning to a federal judge’s ruling in a companion case.
U.S. District Judge James O. Browning ruled in February 2010 that prosecutors could not use evidence taken from Martinez’s home in the case charging Martinez with producing a visual depiction of a minor child involved in sexual activity. Browning predicted a similar outcome in state court.
Browning’s ruling suppressing evidence is on appeal at the 10th U.S. Circuit Court of Appeals in Denver. Browning refused to release Martinez while the appeals court is considering the case.
District Attorney’s Office spokesman Pat Davis said prosecutors intend to work with the state Attorney General’s Office on an appeal, but emphasized the ruling does not mean Martinez “is going to be free tomorrow.”
He said the opinion could have a chilling effect on police response to 911 calls and create the possibility that someone in desperate need of help won’t get it.
“Cops go to hundreds of these (calls)” he said. “And cops find people in their homes who need help. This has an effect that cops in the future could be trained not to enter a house. I know this is about how far they can go in looking, but the practical effect is that officers are going to be more hesitant to do a thorough check on cases that begin like this one.”
Barela Shepherd found that Deputies Nathan Kmatz and Robert Lind, dispatched to the Martinez home in the early afternoon of April 14, 2009, for a static or hang-up 911 call, saw no signs of forced entry as they circled the home, nor did they see anyone inside. They found a closed but unlocked sliding door on the second-story balcony and entered. What they saw as they walked through the “untidy” and “disheveled” but not ransacked home led them to later obtain a search warrant.
“The deputies had developed their own guideline or brightline rule that any 911 call plus an unlocked door meant that the officers could enter to do an investigative sweep to look for persons in need of aid,” Barela Shepherd found.
Although deputies lacked emergency grounds for entering, according to the ruling, they performed a detailed search during which they found a box with DVD movie cases atop a bed and leaned over close to see what was in it. The deputies called a detective, who arrived to gather information for a search warrant affidavit. While the detective was there, Martinez arrived at his home and was taken into custody.
Barela-Shepherd said if Lind and Kmatz hadn’t entered Martinez’s home, there would have been no basis for questioning him or getting a search warrant.
Even if deputies had justification to enter the home, she said, the scope and manner of their search was unreasonable. Instead of looking for persons in need, she said, they were peering into and examining the contents of a small box on top of a bed.
Barela Shepherd is suppressing not only the items found in the home once the warrant was secured, but also statements Martinez made afterward because they were obtained by exploiting the illegal search.
Barela Shepherd also suppressed testimony by the alleged victim. The judge has set a status conference on the case next week.
Copyright 2011 Albuquerque Journal