Lead Opinion
OPINION
{1} Dеfendant 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,
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 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 рersonnel 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 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 exаminer 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 triаl, 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 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,
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 of the county’) denotes a sheriffs 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.A § 1885), and Similar Predecessor Provisions, Restricting Use of United States Army and Air Force to Execute Laws,
{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,
{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,
{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 in assessing the merits of Defendant’s claim, we cannot affirm this ease 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 reаson.” Westland Dev. Co. v. Romero,
{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,
{14} Our focus on the second requirement in Cooper works no unfаirness on Defendant. See Meiboom v. Watson,
{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, Defendаnt contends that “courts 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” and argues that we should do the same. In support of this assertion, Defendant directs us to Taylor v. State,
{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,
{17} Neither Taylor nor Pattioay persuades us to abandon our support for this conclusion. In Taylоr, the Court of Criminal Appeals of Oklahoma first established that “violations of the [PCA] do not warrant invocation of an exclusionary rule.” Taylor,
{18} In Pattioay, the Supreme Court of Hawaii 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,
{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
{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 violаtions of the [PCA].” Dissenting Opinion ¶ 35. The record shows otherwise.
{21} As discussed above, the district court took under advisement Defendant’s 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 сourt 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. 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,
{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 ease of ineffective assistance of counsel, Defendant must show that (1) counsel’s 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’s unprofessional errors, the result of the proceeding would have been different.
State v. Aker,
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,
{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 thаt 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 cannot prove that the timing of the motion caused him prejudiсe. 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 рrofessional 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. See Santa Fe Exploration Co. v. Oil Conservation Comm’n,
III. CONCLUSION
{31} For the foregoing reasons, we affirm.
{32} IT IS SO ORDERED.
Concurrence Opinion
(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 resultеd 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,
{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,
{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,
{37} The majority also noted that the PCA has not been recognized to create a Fourth Amendment protection. Walden,
{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.