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Drug search illegal, court rules

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By David Giuliani

A local district judge shouldn’t have admitted evidence that resulted in a man’s conviction for drug crimes, the state Court of Appeals has ruled.

In a July 8 opinion, the Court of Appeals overruled District Judge Abigail Aragon, who decided to allow drug evidence in a case involving Kenneth Ulibarri, 32.

Ulibarri served nearly two years in prison in connection with drug charges, but he reserved the right to appeal what he considered an illegal search.

The search in question was around 10 p.m. March 14, 2007. Ulibarri lived with his grandfather, Joe Roybal, the owner of a house at 296 Montezuma Route.

Ulibarri’s attorney, Joe Romero, filed a motion to suppress the evidence, calling the search of the home illegal. But Aragon decided for the state.

Members of a regional drug task force had already arrested Ulibarri and his girlfriend when they decided to search Ulibarri’s house, armed with a warrant.

According to the Court of Appeals, the lead officer knew that no one targeted in the investigation was in the house at the time.

The officers knocked and announced their presence. They heard no reply. So after waiting 10 to 12 seconds, the lead officer ordered his team to break a window as a distraction and force entry into the door using a battering ram.

As the door swung inward, it hit Roybal, 79, causing him to fall to the ground. He was sent to the hospital for reported injuries to his head and hip.

Roybal testified that he was in his recliner watching TV when he heard a light knock on the door. He said he got up and tried to answer it when it opened and he was struck in the head, causing him to go temporarily unconscious.

Officers testified that it was customary to wait 10 to 12 seconds after knocking and announcing. But the appeals court pointed to different decisions that showed that the allowable time varied. In a bigger house such as Roybal’s, the officers should have waited longer than 10 to 12 seconds, the court determined.

The court said the officers should consider the time of day of the search, the size of the dwelling and the identity of the occupants likely to be in it. The court determined that there was no evidence that the officers considered any of these facts, instead relying on an inflexible 10- to 12-second rule.

“Roybal’s home was needlessly damaged; Roybal was unnecessarily injured,” the court stated in its opinion.

Inside Roybal’s home, the officers said they found crack cocaine on top of a washer in one of the bathrooms, which is near the bedroom where Ulibarri and his girlfriend stayed. They said the house was being used to sell both heroin and crack.

Romero said the appeals court’s opinion vindicated his client’s constitutional rights.

“We are a country of laws, and obviously, the police are not above the law,” the attorney said.

He said city police Officer Martin Salazar was in charge of a completely unnecessary “dynamic entry” into the house, even though Roybal wasn’t a suspect in any crime and had no history of violence.

“Any delay in Mr. Roybal coming to the door was the result of both his advanced age and the fact that the police chose to execute the search warrant at approximately 10 o’clock at night,” Romero said.

Phil Sisneros, an attorney general’s spokesman, said the state plans to appeal the case to the New Mexico Supreme Court. He didn’t have any other comment.