September 28, 2010 – State of New Mexico v. Raymond Miguel Gonzales, No. 28,693

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ____________
Filing Date: 	September 28, 2010
NO. 28,693
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
RAYMOND MIGUEL GONZALES,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Teddy L. Hartley, District Judge
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

OPINION
CASTILLO, Judge.
{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’s investigation violated the federal
Posse Comitatus Act (the PCA), 18 U.S.C. § 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, ¶ 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.
I. 	BACKGROUND
{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’s

2
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.
{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’s 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’s 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.
{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’s uncle,
who also worked at Solar Shield, informed Maples that Defendant could procure
narcotics for Maples. Defendant’s 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.
{5} 	After each transaction, Maples turned over the methamphetamine he purchased

3
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’s 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.
{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’ 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’s targets, OSI passes that case off to
the agency. 	Prior to trial, there was some discussion in chambers regarding the
“mingling” 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.
{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 “there was an appropriate military interest” that
justified the OSI’s investigation of Defendant. Defendant was convicted on all three

4
trafficking charges.
II. 	DISCUSSION
{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, ¶ 6, 145 N.M. 574, 203 P.3d 105
(reviewing de novo a defendant’s claim that the trial court erred as a matter of law in
denying his motion to dismiss); State v. Boergadine, 2005-NMCA-028, ¶ 33, 137
N.M. 92, 107 P.3d 532 (“The standard of review for claims of ineffective assistance
of counsel is de novo.”). We address each issue in turn.
A. 	The PCA
{9} 	The text of the PCA states:
Whoever, 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.
18 U.S.C. § 1385. “The term ‘posse comitatus’ ([which means literally the] ‘power

5
of the county’) denotes a sheriff’s common law authority to command the assistance
of able-bodied citizens in order to enforce the law.” 	Brian L. Porto, Annotation,
Construction and Application of Posse Comitatus Act (18 U.S.C.S. § 1385), and
Similar Predecessor Provisions, Restricting Use of United States Army and Air Force
to Execute Laws, 141 A.L.R. Fed. 271 § 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 sheriff’s call for aid of the posse comitatus).
{10} 	“Although 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.” Sean J. Kealy, Reexamining the Posse Comitatus Act:
Toward a Right to Civil Law Enforcement, 21 Yale L. & Pol’y Rev. 383, 389 (2003).
“This tradition reflects an American concern, formed well before the Revolution,
about the dangers of using a standing army to keep civil peace” and “[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.” Id.;
see also Cooper, 1998-NMCA-180, ¶ 13 (“[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.”).

6
{11} 	The PCA does precisely what the text of the statute indicates. The PCA “makes
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[.]” 	Cooper, 1998-
NMCA-180, ¶ 13 (internal quotation marks and citation omitted). 	Courts have
employed varying tests to determine when and under what circumstances the PCA is
violated. Id. ¶ 14. In Cooper, we adopted the test that has been recognized by most
courts: “[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.” Id.
{12} 	As described above, the district court’s conclusion that the OSI’s 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’s 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’s 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

7
in assessing the merits of Defendant’s claim, we cannot affirm this case on the basis
that the OSI’s investigation did not violate the PCA. Nevertheless, “[a]n appellate
court will affirm a lower court’s ruling if right for any reason.” Westland Dev. Co. v.
Romero, 117 N.M. 292, 293, 871 P.2d 388, 389 (Ct. App. 1994).
{13} 	In Cooper, this Court made clear that, even where a violation of the PCA is
established, “courts 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.” 	Cooper, 1998-
NMCA-180, ¶ 21. 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 “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). Defendant failed
to prove he was entitled to any relief. Accordingly, we reject Defendant’s argument
that the district court erred in denying his motion to dismiss.
{14} 	Our focus on the second requirement in Cooper works no unfairness on

8
Defendant. See Meiboom v. Watson, 2000-NMSC-004, ¶ 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’s 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, ¶¶ 14, 21. 	The burden was upon Defendant to
prove both elements. 	See 141 A.L.R. Fed. 271, § 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).
{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 “courts faced with egregious violations of the PCA have
found it justifiable to apply an exclusionary rule without waiting for additional

9
violations of the [PCA] to materialize” 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, 896 P.2d 911 (Haw. 1995). We examine
these cases below, but first clarify why the exclusionary rule has only limited
applicability in the PCA context.
{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. “Secondly, the
potential abuses of the [PCA] obviously are not of the same magnitude, neither
qualitatively nor quantitatively, as violations under the Fourth Amendment.” 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 “a PCA violation does not amount to a constitutional violation
and therefore neither dismissal of the charges nor the exclusionary rule is an
appropriate remedy.” Kealy, supra, at 406. Third, and “[f]inally, the [PCA] expresses
a policy that is for the benefit of the people as a whole, but not one that may be

10
characterized as expressly designed to protect the personal rights of defendants.”
Taylor, 645 P.2d at 524 (internal quotation marks and citation omitted). 	In other
words, the PCA “does not provide that the criminal is to go free because the constable
has blundered.” 	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.
{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 “violations of the [PCA] do not warrant invocation of an exclusionary rule.”
Taylor, 645 P.2d at 524. 	However, the court went on to state that “it does not
necessarily follow that all evidence obtained in violation of the [PCA] will be
admissible” and that the court would “examine 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.” Id. Examining the facts in that case, the court found that the
military intervention was “excessive,” could not “be condoned,” and, thus, concluded

11
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, 786 P.2d 630, 635 (Kan. Ct. App.
1990) (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)).
{18} 	In Pattioay, the Supreme Court of Hawai’i similarly recognized that “[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” and that “courts have generally
found that creation or application of an exclusionary rule is not warranted” 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 Hawai’i cited two grounds as support for this conclusion: (1) Lee
v. Florida, 392 U.S. 378, 385-87 (1968), where the United States Supreme Court held
that recordings obtained by intercepting a defendant’s telephone conversations in

12
contravention of federal law were subject to the exclusionary rule; and (2) the
Supreme Court of Hawai’i’s supervisory powers in the administration of criminal
justice in the courts of Hawai’i. Pattioay, 896 P.2d at 923-25.
{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, § 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 Hawai’i. 	See id.; Kealy, supra, at
405-08. 	Additionally, Defendant has failed to explain how the independent state
grounds cited by the Supreme Court of Hawai’i 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, ¶ 15, 137 N.M. 339, 110 P.3d 1076.
{20} 	In his dissent, Judge Garcia would have us remand for a new trial because, in
his view, the “district court inappropriately thwarted Defendant’s opportunity to
present factual evidence regarding potential widespread and repeated violations of the
[PCA].” Dissenting Opinion ¶ 35. The record shows otherwise.
{21} 	As discussed above, the district court took under advisement Defendant’s

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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’s case and at the end of
Defendant’s case. Defendant renewed the motion to dismiss after the State rested.
Based on his contentions that local law enforcement’s involvement was very limited
and that the investigation was almost entirely a military operation, Defendant argued
that the PCA had been violated.
{22} 	The district court correctly acknowledged that the PCA prohibits the military
from “taking over” and conducting civilian police affairs, but the court’s focus was
the military purpose underlying the investigation. In light of the court’s 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’s request.
{23} 	After hearing the additional evidence, the court denied Defendant’s motion.
The court then inquired whether Defendant intended to present any further evidence.
Defendant rested.
{24} 	The foregoing demonstrates that the district court did nothing to prevent or limit
Defendant’s 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.

14
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, ¶ 31, 147 N.M. 291, 222 P.3d 1 (“On appeal, issues not briefed are
considered abandoned, and we do not raise them on our own.”). 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, ¶ 21, 132 N.M. 602, 52
P.3d 974 (affirming denial of motion for new trial thus rejecting the defendants
attempt to “take another bite at the apple.”). This we cannot do.
{25} 	For the foregoing reasons, we reject Defendant’s assertion that the district court
erred in denying his motion to dismiss. 	We proceed to Defendant’s ineffective
assistance of counsel claims.
B. 	Ineffective Assistance of Counsel
{26} 	The law governing ineffective assistance of counsel claims in New Mexico is
well settled.
To establish a prima facie case of ineffective assistance of counsel,
Defendant must show that (1) counsel’s performance was deficient in

15
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’s unprofessional errors, the result of the proceeding
would have been different.
State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (internal quotation
marks and citation omitted).
When 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.
State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61.
{27} 	Defendant’s 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.
{28} 	As 	discussed 	above, 	there 	was 	no 	evidence 	presented 	that 	the 	OSI’s
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

16
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.
{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’s deliberations. Next, he claims that trial counsel’s
failure to recognize the charging error establishes that trial counsel “did little or
nothing” to represent Defendant’s 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.
{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.

17
See Santa Fe Exploration Co. v. Oil Conservation Comm’n, 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’s claim that defense counsel failed
to attend pretrial hearings and, thus, we also decline to consider this contention. See
id. 	Aside from Defendant’s 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’s interests. Finally, it is not clear how the absence of pleadings
proves that defense counsel was ineffective. 	See Headley, 2005-NMCA-045, ¶ 15
(“We will not review unclear arguments, or guess at what [a party’s] arguments might
be.”).
III. 	CONCLUSION
{31} 	For the foregoing reasons, we affirm.
{32} 	IT IS SO ORDERED.
________________________________
CELIA FOY CASTILLO, Judge

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I CONCUR:
__________________________________
JAMES J. WECHSLER, Judge
TIMOTHY L. GARCIA, Judge (concurring in part and dissenting in part)

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GARCIA, Judge (concurring in part and dissenting in part).
{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’s 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.
{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, ¶ 20. On
appeal, however, this Court “will not assume the role of the trial court and delve into
. . . fact-dependent inquiries.” Id. (alteration omitted) (internal quotation marks and
citation omitted). We have specifically refrained from doing so “in the absence of any
substantial 	evidence 	supporting 	what 	would 	be 	the 	right 	reason.” 	Allsup’s
Convenience Stores, Inc. v. N. River Ins. Co., 1999-NMSC-006, ¶ 20, 127 N.M. 1, 976
P.2d 1 (filed 1998). “To do so without allowing [the p]laintiffs the opportunity to
develop the record . . . [regarding] factual allegations would work undue prejudice
upon them.” Pinnell v. Bd. of County Comm’rs, 1999-NMCA-074, ¶ 14, 127 N.M.
452, 982 P.2d 503. A finding of prejudice to the appellant is “especially apparent in
[a] case [where the other party] never explicitly raised the issue below.” Id.
{35} 	In this case, the district court incorrectly ruled that the PCA did not apply by

20
failing to recognize the appropriate test established in Cooper, 1998-NMCA-180,
¶ 14, and failing to take any evidence regarding widespread and repeated violations
of the Act, id. ¶ 21. By ruling that the PCA did not apply at the close of the State’s
evidence 	during 	trial, 	the 	district 	court 	inappropriately 	thwarted 	Defendant’s
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’s 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.
{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. ¶ 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, ¶ 14.

21
{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, ¶¶ 14,
21 (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, ¶ 21.
{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.

22
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.
___________________________________
TIMOTHY L. GARCIA, Judge