Traffic-Mtn Dismiss -DUI Checkpoint

IN THE MAGISTRATE COURT STATE OF NEW MEXICO COUNTY OF SANTA FE STATE OF NEW MEXICO,

Plaintiff

v. No. M-49-DR-2015-0096

GILBERT F. ROMERO, Defendant-in-error

VERIFIED MOTION TO DISMISS FOR LACK OF JURISDICTION

COMES NOW Gilbert Romero, real party in interest in this matter, hereinafter Romero,

making a special appearance without waiving any rights, remedies or defenses, statutory or

procedural to make this motion to dismiss the above captioned action with prejudice for lack of

jurisdiction.

INTRODUCTION

1. On February 20, 2015 Romero was the subject of an unlawful arrest for concealing

identity at a sobriety checkpoint on State Road 76 near the La Puebla road.

2. After being taken to the police station Romero was asked his name and gave it in good

faith to the officer, at which time he was charged with driving while license is suspended or

revoked.

3. At the police department the officer asked Romero if he had been drinking, which

Romero answered, again in good faith, with one drink four hours ago at dinner. The officer

then asked Romero if he would do a field sobriety test. Knowing the arrest to be unlawful

Romero refused to submit to the field sobriety test. As a result the officer added a charge of

Aggravated DWI.

4. On February 22, 2015 Romero was released from the Santa Fe County jail on a $2,500

surety bond containing the most restrictive release provisions possible.

5. On February 25, 2015 an arraignment was held with Judge Donna Bevacqua-Young in

which Romero made a special appearance solely to challenge jurisdiction based on the illegality

of the arrest.

BACKGROUND

Portions of this action are related to two existing criminal complaints, which are the subject

of two appeals in the state district court and a civil lawsuit resulting from those criminal

complaints, which is on appeal with the United States District Court of Appeals for the Tenth

Circuit in which Romero is a plaintiff.

In April of 2013 Romeros spouse, Marcelina Martinez, hereinafter Martinez was

charged with Unpermitted Development in this magistrate court under action No. M-49-MR-

2013-00498. The court in that case issued a Notice of Arraignment without specifying the type of

appearance requested, whether it were physical appearance, appearance by attorney, or

appearance by a motion to dismiss with a challenge of jurisdiction. Martinez appeared using the

latter method challenging both subject matter and personal jurisdiction. Despite this appearance

the assigned judge issued a Bench Warrant against Martinez in violation of rule 6-207 for

violating a Notice issued by a clerk. Martinez was eventually arrested under the bench warrant in

a highly distressing and injurious way. The fatal error of an invalid and unlawful bench warrant,

along with several other due process violations within that action prompted an appeal to the

district court, D-101-LR-201400007, which is still pending.

As an incident to Martinezs arrest Romero had arrived at the scene to determine if it was

lawful and to request to see the warrant from the arresting officer. After Martinez was already

under arrest and despite simply asking questions the officer refused to answer Romeros

questions and instead arrested him for resisting, evading and obstructing arrest. The officer also

conducted this arrest in a highly injurious manner using both a stun gun and Taser on Romero

and forcefully manhandling him after placing handcuffs. Subsequent to this arrest the officer

accused Romero of drunk driving and when Romero refused to submit to a chemical test, again

because he knew the arrest to be unlawful, he was charged with Aggravated DWI.

Apparently as a result of the Aggravated DWI charge in that action, M-49-DR-2013-00286,

Romeros drivers license was revoked; however, he was unaware of this, as he believed he had

never received notice. He filed a motion to dismiss in that case, which was denied by the

magistrate judge. Romero timely filed an interlocutory appeal to the district court, which is also

still pending, case D-101-LR-201300030.

Romero erroneously believed that his drivers license was still valid pending the appeal and

until the court finally disposed of the matter. Romero has been waiting for a hearing to be

scheduled in the appeal, however none has been set and therefore the present incident has

prompted him to file a Motion to Dismiss the original complaint with prejudice based on his

right to a speedy trial. Romero has also requested a hearing with the Department of Motor

Vehicle to reinstate his drivers license.

FACTS AND ARGUMENT

I. The underlying arrest in this action was illegal and unconstitutional

It is clear from the face of the officers statement of probable cause that his arrest was

unconstitutional and lacking in due process. In addition, Romero obtained video footage of the

arrest with his own device, which can be corroborated by the officers COBAN device and

digital recorder. This, along with the attached affidavits indicate that that sobriety checkpoint

itself was illegal.

a. The arresting officer lacked probable cause for arresting Romero on the underlying charge of Concealing Identity

According to the officers statement of probable cause and Romeros recording of the

incident, details of which can be found in Romeros affidavit of events, attached as Exhibit A,

the officer asked Romero for his identification prior to having any probable cause that Romero

was committing any offense or crime. NMSA 1978 30-22-03 provides, Concealing identity

consists of concealing one's true name or identity, or disguising oneself with intent to obstruct

the due execution of the law or with intent to intimidate, hinder or interrupt any public officer or

any other person in a legal performance of his duty or the exercise of his rights under the laws of

the United States or of this state. This clearly states that this statute is only triggered if a public

officer is engaged in due execution of the law. In this case the officers were conducting a

sobriety checkpoint and not an identification checkpoint. Under Article II, Section 10, the

reasonableness of a traffic stop is limited only by the time required to conduct a reasonable

investigation into the initial justification for the stop. The scope of questions asked by an officer

must be reasonably related to the initial justification for the stop. State v. Duran, 2005-NMSC-

034, 138 N.M. 414, 120 P.3d 836.

The checkpoint consisted of stopping every car passing through solely to determine if

anyone had been driving while intoxicated, not to ask every individual for identification. It is

obvious from the face of the complaint and Romeros affidavit that the officer lacked probable

cause to believe that Romero was driving while intoxicated and therefore he had no rights under

the laws of the United States to ask Romero for his identification or any other question. Romero

properly reserved his rights and invoked his own Fifth Amendment right not to be a witness

against himself.

The officers did not make contact with Romero because they had any probable cause that

he was involved in any offense or that he had committed any offense or based on any reasonable

suspicion that he should be investigated but because they were stopping every individual driving

on that particular stretch of the road. In fact when Romero questioned the supervisor in charge of

the checkpoint, Sgt. Gettler, if he was under arrest, Gettler stated more than once that he was not.

Gettler also made it clear that Romero had not violated any traffic infraction. [A] roadblock set

up and operated for the purpose of detecting and apprehending drunk drivers is constitutionally

permissible so long as it is reasonable within the meaning of the fourth amendment as measured

by its substantial compliance with the guidelines outlined See Betancourt, infra, and the

argument below.

According to Keylon v. City of Albuquerque, et al., 535 F.3d 1210 (10th Cir. 2008), a

warrantless arrest violates the Fourth Amendment unless it was supported by probable cause

(citing Fogarty v. Gallegos, 523 F.3d 1147, 1156 (10th Cir.2008)). "Probable cause exists if facts

and circumstances within the arresting officer's knowledge and of which he or she has

reasonably trustworthy information are sufficient to lead a prudent person to believe that the

arrestee has committed or is committing an offense." Romero v. Fay, 45 F.3d 1472, 1476 (10th

Cir.1995) (internal quotation marks omitted). [T]o arrest for concealing identity, there must be

reasonable suspicion of some predicate, underlying crime. See Brown v. Texas, 443 U.S. 47, 52,

99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (observing that whatever purposes may be served by

"demanding identification from an individual without any specific basis for believing he is

involved in criminal activity, the guarantees of the Fourth Amendment do not allow it"). In fact

Romero attempted to educate the supervisor regarding this and the supervisor agreed that Fourth

Amendment provisions were applicable. The supervisor should have known this and he should

have informed his officers during briefing of the checkpoint provisions regarding this critical

issue. The supervisor should have also been well aware of his own training regarding the laws of

arrest, which can be found at:

http://www.nmlea.dps.state.nm.us/legal/documents/Laws_of_Arrest-Part_II.pdf

b. The DWI checkpoint was illegal

The method in which the arresting officer approached Romero and the questions that he

asked were in violation of well established law. Further, two other individuals who also passed

through the checkpoint, one before Romero, and one after Romero, have provided testimony via

affidavit that the officers were not following uniform procedures and were using unbridled

discretion in conducting their checkpoint.

During Romeros encounter with the arresting officer he asked to speak with the supervisor

on site. An exchange between the Sgt. Larry Gettler and Romero indicates that the checkpoint

itself was illegal based on Gettlers own disclosures. During the exchange Gettler informed

Romero that State v. Betancourt is the case law for checkpoints and that they were conducting

everything through that case. Romero discovered that the officer meant City of Las Cruces v.

Betancourt, 1987-NMCA-039, 105 N.M. 655, 735 P.2d 1161.

The facts within the attached affidavits, which can be corroborated by the recording made

by Romero as well as the officers official recordings, and the facts given within the statement of

probable cause indicate that the checkpoint itself was conducted illegally. Sgt. Gettler, in citing

the case should have been well aware of what constitutes a legal checkpoint yet he himself

proved, by his actions, that the checkpoint was illegal. Betancourt details eight requirements for

a legal checkpoint. It is clear from the attached affidavits and Gettlers own disclosures that the

checkpoint was in violation of five of the eight requirements.

1. First, Betancourt discusses the role of supervisory personnel:

We agree with the Ingersoll court that the decision to set up a sobriety roadblock, the selection of the site and procedures for conducting it must be made and established by supervisory law enforcement personnel rather than officers in the field. Ideally, roadblock decisions should be made by the chief of police or other high-ranking supervisory officials. See Little v. State, 300 Md. App. 485, 479 A.2d 903 (1984). This is essential to reduce the possibility of improper, unbridled discretion of the officers who meet and deal with the motoring public.

It is clear that Gettler failed in his role as a supervisor of the checkpoint by improper location of

the site and the improper, unbridled discretion of the officers who meet and deal with the

motoring public, safety of the site, and failing himself to understand Fourth Amendment

provisions going so far as to arrest Romero for concealing identity without suspicion of any

predicate, underlying crime.

2. Second, Betancourt requires that the discretion of the officers be restricted and

that As nearly as possible, each motorist should be dealt with in precisely the same manner.

According to two other travelers who were stopped at the checkpoint the officers were not

dealing with each traveler in precisely the same manner. One traveler that passed through the

checkpoint prior to Romero was not asked any questions and was simply allowed through and

the second traveler, who passed through the checkpoint after Romero, was asked two questions,

have you had anything to drink and do you have your ID on you? That traveler did not answer

either question and remained quiet yet he was also allowed through. In this case Romero was

asked a question, possibly a request for his ID, although he does not recall the question asked, he

responded with, no questions and the officer then continued to ask questions and to see his

drivers license. Moreover, Romero asked if he was under arrest to which the officer

responded he was not; then Romero asked if he was being detained, to which the officer stated

that he was. These two responses are contradictory. The affidavit attached, which can be

corroborated by the official video(s), viewed in conjunction with the affidavits of the other two

travelers, indicates that the officers were not following procedure and were using unbridled

discretion.

3. Third, Betancourt requires that safety of the motoring public and field officers

should be given proper consideration. According to Romero and Felix Martinez in their

affidavits, the checkpoint was in a location that did not meet the safety requirement. It is well

known that State Road 76 between Espanola and Chimayo is congested and has very little

shoulder space. There are no passing zones along this stretch due to the fact that oncoming traffic

cannot see far enough to allow such a zone. By placing a checkpoint in this area the supervisor

placed not only his own officers at risk but also the motoring public, particularly those they

actually suspect of drunk driving and who would require to pull off to the side and be given field

sobriety tests.

4. Fourth, Betancourt requires that the checkpoint be placed at a reasonable location;

it particularly provides, a location chosen with the actual intent of stopping and searching only a

particular group of people, i.e., Hispanics, blacks, etc., would not be tolerated. In this case the

location was placed at the northern end of the large county of Santa Fe near the border of Rio

Arriba County. Santa Fe County encompasses areas south of Santa Fe as well as north, such as

the location chosen. It is very well known that the location chosen is a depressed area with

mainly a Hispanic population many of whom live below the poverty level. The location chosen is

at least ten minutes from the town of Espanola to the west, and ten minutes from the nearest

restaurant to the east and therefore it was placed in the midst of residential houses where mostly

native locals live and completely away from any liquor establishments or cities. There is nothing

to show that the location was not placed solely to target the local community who live near La

Puebla, Santa Cruz, and Chimayo and who meet the demographics of this small populace of

people. As of 2010, Santa Fe County had a total population of 144,171 people with 51%

Hispanic or Latino and 43.5% White or Non-Latino.

Out of the total population of Santa Fe County, 17% are below the poverty level. See

http://quickfacts.census.gov/qfd/states/35/35049.html. The current population of Chimayo is

2,882, with 88.6% being Hispanic or Latino and 33% below the poverty level. See

http://www.newmexico-demographics.com/chimayo-demographics. The current population of

Santa Cruz/Cuarteles is 293, 93.2% Hispanic or Latino, and 62.5% below the poverty level. See

http://www.newmexico-demographics.com/santa-cruz-demographics. The current population of

La Puebla is 1,081, 85.4% are Hispanic, and 19.1% below the poverty level. See

http://www.newmexico-demographics.com/la-puebla-demographics. Although because most of

the La Puebla population would not access their homes via SR76 and therefore would bypass this

area completely, in actuality the checkpoint targeted a population of closer to 3,000, and not

more. Given that the location chosen for this checkpoint represents closer to only 21% of the

population of Santa Fe county; the background of the local residents is closer to 92% Hispanic,

whereas the population of Santa Fe County as a whole contains 51% Hispanics; and the local

residents in the area chosen are 38.2% below the poverty level whereas Santa Fe County has

17% below the poverty level it is obvious that the area was targeted based on its demographics.

In fact, and related to the safety requirement discussed above, the checkpoint was placed

just past a curve headed west out of Chimayo. There were no posted signs giving notice or

warning that a sobriety checkpoint was ahead. According to the Affidavit of Felix Martinez he

was forced to come to an abrupt stop just past the curve. This not only created a safety hazard but

because there were no warnings of the checkpoint, particularly from the direction of Chimayo, it

appears that the location was also chosen to specifically target residents from Chimayo. Just west

of the location of the checkpoint is the only straight stretch of road between Espanola and

Chimayo, there is no reason the checkpoint should have been placed so close to the curve and not

in the middle of the stretch, which would have allowed visibility equally from traffic coming

from east and west.

5. Fifth, and finally, Betancourt requires that the official nature of the roadblock be

immediately apparent. Although there were flares and/or reflectors as well as plenty of officers

on scene the official nature of the roadblock was not apparent from travelers coming from the

east. Although travelers from the west saw a single sign stating, Sobriety Checkpoint, Romero

was traveling east to west where there was no sign and Romeros conversation with the officers,

including the supervisor, immediately became a papers please checkpoint. Despite the officers

stating that they were conducting a sobriety checkpoint they actually used this as a pretext to ask

for a drivers license from Romero without probable cause that he had been drinking. Indeed the

officers never indicated that they had any reason to believe Romero had been drinking and they

did not ask Romero to submit to a field sobriety test at the stop at all. It wasnt until they had

already arrested him for concealing identity that Officer Matherson decided that he smelled

alcohol on Romero and then later asked him to submit to a test.

A constitutional roadblock requires that officers not be allowed to ask questions unrelated

to sobriety and that this is part of the briefing procedure provided by the supervising officer. See

State v. Rivera, 2010-NMCA-109, 149 N.M. 406, 249 P.3d 944, affd in part, revd in part, 2012-

NMSC-003, 268 P.3d 40. In this case not only did the officer ask questions unrelated to sobriety,

it was actually the supervising officer who informed Romero that he was arrested for concealing

identity.

II. The charge of Aggravated DWI was added absent due process or probable cause and inadmissible under the Fruit of The Poisonous Tree Doctrine

It is well known that officers require due process and probable cause before arresting

anyone for any offense. A sobriety checkpoint is only constitutional as long as any resulting

searches or seizures are made consensually or with probable cause and the scope of the

checkpoint extends only to a sobriety check. See Rivera above. In this case it is clear that the

officer had no probable cause to believe that Romero had been drinking and, in fact, Romero

asserted his Fifth Amendment right to not be a witness against himself. Despite this the officers

detained Romero and then expanded the scope of their checkpoint to ask for his drivers

license. Because the checkpoint was not a valid traffic stop based on probable cause any searches

incident to that checkpoint should have been consensual, with a warrant, or exigent

circumstances. See State v. Sedillo, 79 N.M. 289, 442 P.2d 601 (Ct. App. 1968) (Search and

seizure is constitutionally lawful under either of three instances: if conducted pursuant to a legal

search warrant, by consent or incident to a lawful arrest.). It goes without saying that a

checkpoint is not a lawful arrest and the officers were not in the execution of any lawful duties.

Romero was not stopped based on any probable cause and he made this very clear to the officer

yet the officer believed he could demand Romeros identification and arrest him for not

producing it. The officers therefore lacked authority to ask Romero for his ID, which is

essentially an unconsented search. Police officers cannot just ask anyone for permission to

search his effects. State v. Bidegain, 88 N.M. 384, 540 P.2d 864 (Ct. App.), rev'd in part, 88

N.M. 466, 541 P.2d 971 (1975).

It was not until after an arrest for concealing identity, which is not a standalone charge, that

the officer expanded his investigation and suddenly believed he had probable cause to ask

Romero to submit to a field sobriety test. In fact Romero was not even asked to take a test until

long after he was arrested. Absent a valid warrant or consent by the defendant, an arrest prior to

the taking of a blood alcohol test is an essential element in order to constitute a reasonable search

and seizure. State v. Richerson, 87 N.M. 437, 535 P.2d 644 (Ct. App.), cert. denied, 87 N.M.

450, 535 P.2d 657 (1975). The fact that Romero refused the test is immaterial since his arrest,

which was purportedly incident to a sobriety checkpoint, was actually made absent probable

cause and without having ever allowed or even asking Romero to submit to a test prior to being

arrested.

Under the New Mexico constitution, a police officer cannot use a valid traffic stop as a

pretext to pursue an investigation of another offense that is not supported by reasonable

suspicion or probable cause. State v. Ochoa, 2009-NMCA-002, 146 N.M. 32, 206 P.3d 143,

cert. quashed, 2009-NMCERT-011, 147 N.M. 464, 225 P.3d 794. Although the checkpoint was

intended to identify drunk drivers it is clear that the officers did not suspect Romero of drunk

driving. It was not until after having been arrested for concealing identity that the arresting

officer decided to question Romero about alcohol and when he refused to submit to a field

sobriety test Officer Matherson added a DWI charge. Clearly this charge was not initially

supported by reasonable suspicion or probable cause but was obviously added as a protection

measure for the officer because the arrest occurred at a sobriety checkpoint.

III. The charge of driving while license is suspended or revoked (revoked for DWI) stemmed from another unlawful arrest for DWI (Aggravated for failure to submit to a test) and resulted from retaliation by another officer on scene and improper profiling

Romeros arrest was not based on probable cause or reasonable suspicion but for

concealing identity. It was not until after the sergeant had intended on placing Romero under

arrest for concealing identity that he obtained reasonable suspicion that Romero was driving on a

revoked license. This reasonable suspicion came from an officer who is presently being sued

by Romero for another unlawful arrest and who clearly harbors a personal vendetta against him.

a. The revocation of Romeros license stemmed from an unlawful arrest conducted absent probable cause or jurisdiction

Unbeknownst to Romero, according to Officer Matherson, Romero was driving while his

license was suspended or revoked. This was not determined until Romero, in good faith, told

Matherson his name at the station. The action resulting in the alleged revocation of license was

based on the arrest of Romeros wife on July 27, 2013 in which Officer Ernest Garcia of the New

Mexico State Police conducted a traffic stop absent probable cause solely to execute an invalid

bench warrant issued without authority and in violation of the Bench Warrant rule. Officer

Garcia also conducted the arrest without having the warrant in his physical possession. The

bench warrant was issued for an alleged failure to appear at an arraignment for Unpermitted

Development, a Santa Fe County Land Use Code. That case is presently on appeal at the district

court and pending adjudication of a Motion to Vacate Void Magistrate Court Judgment and

Dismiss Original Complaint (see D-101-LR-201400007). Given that the arrest from which the

revocation of license stemmed was conducted absent jurisdiction, the revocation was also absent

jurisdiction and anything flowing from that arrest is unlawful.

During Martinezs arrest Romero traveled to the scene to ensure her safety and to ask to see

a valid Fourth Amendment warrant. Officer Garcia did not like Romeros questions and

commanded him to leave without cause and in a highly confrontational manner. Because Romero

did not leave as commanded Garcia used a stun gun and Taser on Romero arresting him for

resisting, obstructing, or evading despite the fact that Romero was simply asking questions and

his wife was already under arrest in Garcias unit. The situation was remarkably similar to that in

Keylon, supra, wherein the court determined that the arrestee had not used any fighting words or

physical resistance and therefore the underlying charge of resisting, evading, and obstruction was

not supported by probable cause. See Id at 1216-1217.

That arrest resulted in great injury to Romero, including the physical injury caused by

Garcia upon Romero and Martinez, the deprivation of freedom, and even injury to Romeros

elderly mother-in-law who was injured by Garcias backup officer due to the heightened tensions

created by Garcia and his confrontational manner. After arresting Romero for resisting,

evading, and obstructing, Garcia added a charge of Aggravated DWI because Romero

subsequently refused to submit to a chemical test. Romero filed a motion to dismiss that

complaint with prejudice, which has been pending appeal at the district court since October

2013, see D-101-LR-201300030.

Romero filed a Motion to Dismiss the Original complaint in that action with prejudice

based on the speedy trial rule on February 24, 2015 upon discovering that his license had been

revoked. Despite the fact that a hearing was requested in that action on 11/15/13, a hearing has

never been scheduled. According to State v. Hrabak, 100 N.M. 303, 669 P.2d 1098 (Ct. App.

1983) if the district court is at fault for not setting a hearing within six months, it has jurisdiction

to dismiss the complaint with prejudice. It has now been more than fifteen months thus the court

should dismiss that action on this premise alone.

Romero has never been charged with any crime during the 59 years of his existence. The

revocation of license charge in this case stemmed from an improper arrest for Unpermitted

Development by a highly unprofessional and confrontational officer, Ernest Garcia and, on

information and belief, as a result of a conspiracy between Garcia and two Santa Fe County

deputy sheriffs who had unsuccessfully attempted to arrest Martinez on her private land. Romero

was unaware that his license had been revoked. If he had known he would have dealt with the

issue long before the present incident. He has requested a hearing with the Motor Vehicle

Division to deal with the situation now that he has been made aware. Romero erroneously

believed that the document provided to him subsequent to the previous arrest was a temporary

license and that as long as the action was pending this temporary license was valid.

Due to the injurious nature of the previous arrest Romero and Martinez filed a civil rights

lawsuit against Officer Ernest Garcia in the United States District Court, see case 1:13-cv-922.

Although Garcia was dismissed on summary judgment based on immunity Romero and Martinez

appealed the decision to the Tenth Circuit Court of Appeals, Case No. 14-2227, which is

currently pending.

At the scene of the checkpoint Romero recognized Garcia and in fact the Statement of

Probable Cause specifically states that Officer Ernie Garcia told [him] that the male in the black

Dodge bearing New Mexico license plate, is also driving on a license that is Suspended or

Revoked pursuant to a DUI arrest. Prior to this Sgt. Gettler had specifically stated that he did

not have any reasonable suspicion that Romero did not have a valid license. He actually stated,

Im SURE you have a valid license Because Garcia is the subject of a lawsuit in which

Romero is suing him specifically for an unlawful arrest related to the revocation of license it was

wholly improper for him to make any contact with Romero or to involve himself in this situation

whatsoever. Any involvement by Garcia in this case is a gross conflict of interest. On

information and belief Garcia was deliberately attempting to have Romero arrested as retaliation

for the lawsuit against him.

Officer Ernest Garcia has a history of not only being highly confrontational but also having

a mentality of retaliation. In July of 2006 Garcia was the subject of another civil rights action in

the United States District Court for the District of New Mexico, Case 1:06-cv-00666 filed on

7/27/06, Martinez v. Garcia, et al. in which he clearly threatened and attempted to intimidate the

plaintiff, see paragraph 21 of that complaint. Garcia was ultimately unable to arrest Mr. Martinez

but continued to attempt to intimidate him, [b]efore releasing Plaintiff, Defendant Garcia

threatened Plaintiff, telling him that next time they would get him. That civil rights case

was ultimately settled out of court.

According to the statement of probable cause Officer Garcia said that he may still have the

males license in his car because he arrested him before. The fact that Officer Garcia has any

involvement whatsoever in Romeros previous case, going so far as to hold Romeros license in

his car is inappropriate and should result in severe discipline of Garcia. It is apparent that Garcia

has a vendetta against Romero and has quite possibly been waiting for an opportunity to secure a

second arrest. Garcia has apparently placed Romero on his own Wanted list targeting only

Romero and not any others who might be driving with a suspended license, which is wholly

improper. Upon being noticed of the lawsuit Garcia should have turned over Romeros license

and any other property of Romeros that Garcia might have to his superiors and removed himself

from any situation(s) relating to Romero.

b. Evidence of revoked or suspended license is inadmissible under the Fruit of the Poisonous Tree Doctrine

Evidence that Romero had a revoked or suspended license was not obtained until after the

unlawful arrest and based on the interrogation wherein Officer Matherson asked Romero for

his name and date of birth again at the police department. Based on this interrogation Romero

gave Matherson both his name and date of birth, which apparently confirmed a revoked license.

Romeros purpose for giving his identifying information at that point was so that Matherson

would contact the on-call judge to explain the situation of the previous arrest and thus that the

present arrest would have also been unlawful for that reason alone. Prior to the arrest there was

no reasonable suspicion that he was driving with a revoked license, Romero himself was

unaware of this, and in fact Sgt. Gettler specifically stated, Im SURE you have a valid license.

The notion that the license was revoked was based on hearsay information from an officer with a

personal vendetta against Romero resulting from the very arrest that caused the revocation of

license, which Romero maintains was unlawful. It was fruit from this impropriety that created

any potential reasonable suspicion. At the time of the arrest Romero was still considered a John

Doe and in fact Matherson stated to the dispatcher that he had a John Doe with a possible

revoked license. This statement lacks all semblances of logic or propriety.

Without the identity of an individual suspected of a revoked license there could not be

probable cause that a revoked license existed. Moreover the evidence that ultimately confirmed

the revoked license was obtained after the arrest and through an illegal interrogation. During the

initial exchange with officers resulting from a sobriety checkpoint Romero repeatedly asserted

his Fifth Amendment right not to be a witness against himself, which the officers and supervisor

violated by ultimately using his responses at the police department against him and even as a

pretext to demand ID and subsequently arrest him for concealing identity without any other

reasonable suspicion or probable cause that Romero had committed or was about to commit a

crime. Because Romero has been injured by the use of his information during an illegal

interrogation he has a right to seek exclusion of that information so that it is not used against

him. See State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct. App.), cert. denied, 81 N.M. 506, 469

P.2d 151 (1970).

IV. The Magistrate court lacks both subject matter and personal jurisdiction

Due to the fact that the statement of probable cause fails to show probable cause at all and

asking for identification was improper and against the law and it is clear from the statement that

the only reason two additional charges were added were to justify the original arrest, the

magistrate court lacks subject matter jurisdiction. The fact that the arresting officer did not

witness Romero committing any crime or offense nor did he have any reasonable suspicion that

Romero had committed any crime or offense and improperly asked to see his identification and

then arrested him for not showing it, the arresting officer did not properly obtain personal

jurisdiction over Romero. Additionally even if personal jurisdiction had been properly acquired

via a valid arrest, the magistrate court lost that jurisdiction during the arraignment due to

violating established law and Romeros due process rights.

a. The statement of probable cause did not properly invoke the subject matter jurisdiction of the magistrate court.

Notwithstanding the fact that the magistrate court has been granted subject matter

jurisdiction over the types of charges against Romero, due process requires that subject matter

jurisdiction is only properly invoked by showing, via the statement of probable cause, that an

offense was actually committed. See e.g. State v. Chacon, 62 N.M. 291, 309 P.2d 230 (1957);

also Smith v. State, 89 N.M. 770, 558 P.2d 39 (1976).

In this case there is nothing from the statement to show that Romero had committed an

underlying criminal offense allowing the officers to ask to see his ID. The charge of concealing

identity does not stand on its own, see Keylon, supra, and therefore the statement is insufficient

to invoke the subject matter jurisdiction of the court. Neither of the additional charges was

sufficient to invoke the courts jurisdiction because they were added subsequent to the arrest for

concealing identity. Those charges are barred by the Fruit of the Poisonous Tree Doctrine and

evidence obtained to include those charges is tainted and must be suppressed. See State v.

Hawkins, 991 P. 2d 989; also State v. Hernandez, 1997-NMCA-006, 30, 122 N.M. 809, 932

P.2d 499.

Any judgments rendered by a court that lacks jurisdiction are void and subject matter

jurisdiction must clearly exist. Jurisdiction of subject matter cannot be conferred by consent,

much less can it be waived. Zarges v. Zarges, 79 N.M. 494, 445 P.2d 97 (1968). Judgment is a

void judgment if the court that rendered judgment lacked jurisdiction of the subject matter, or of

the parties, or acted in a manner inconsistent with due process. Klugh v. U.S., 620 F.Supp. 892

(D.S.C. 1985).

b. The lack of probable cause deprived the arresting officer of personal jurisdiction

Due to the fact that the underlying arrest was illegal the officer did not properly acquire

jurisdiction over Romeros person. Romero made a special appearance at the arraignment solely

to challenge jurisdiction and did not enter a plea. Romero has provided affidavits in support of

this motion to properly challenge jurisdiction and, in fact, the officers statement itself

corroborates Romeros contention that there is no jurisdiction in this case. Where jurisdictional

allegations are properly and adequately traversed and challenged, plaintiff has burden to prove

them at the hearing on a motion to dismiss. State ex rel. Anaya v. Columbia Research Corp., 92

N.M. 104, 583 P.2d 468 (1978).

c. The magistrate in charge of release provisions erred depriving Romero of due process

Romero was released from jail on Sunday, February 22, on a $2,500 surety bond with the

most strict release provisions including those listed in Romeros attached affidavit. According to

NMRA 6-203, In all cases in which the arrest has been made without a warrant and the person

has not been released upon some conditions of release, a probable cause determination shall be

made to determine if a person shall remain in custody and, If the court finds that the complaint

fails to establish probable cause to believe that the defendant has committed an offense and no

amendment is filed with sufficient facts to show probable cause for detaining the defendant, the

court shall order the immediate personal recognizance release of the defendant from custody

pending trial.

It is clear that the assigned magistrate erred in giving Romero a surety bond and imposing

such severe conditions of release. The statement of probable cause clearly states that Romero

was arrested for concealing identity, which, again, requires an underlying predicate crime. A

police officer does not have the authority to determine from an affidavit whether probable cause

exists and therefore it is improper for a magistrate to rely on an officers statement alone. It is

for a neutral and detached judge to determine from the affidavit whether probable cause exists.

State v. Baca, 97 N.M. 379, 640 P.2d 485 (1982).

Moreover, it is clear that both during the preliminary examination and at the arraignment

neither judge acted in accordance with law when setting release provisions. The New Mexico

Supreme Court issued a lengthy opinion in State v. Brown, 2014-NMSC-038, regarding the

common law requirement for excessive bail. Clearly this would have been a case where release

on personal recognizance or an appearance bond would have been warranted and even required.

Additionally, the imposition of all restrictions upon Romero violates due process and is contrary

to the precedential opinion in Brown. Whenever possible, the court should dispense with the

requirement of any financial security and should release the defendant either on the defendants

personal recognizance or upon the execution of an unsecured appearance bond in an amount set

by the court. In addition to choosing an appropriate bail option, the trial court should consider

whether to impose additional nonmonetary conditions to limit and monitor the defendants

conduct while released pending trialThe court has a duty to tailor the conditions of pretrial

release to the needs and risks posed by each individual defendant. It is obvious that the

reviewing magistrate and the arraigning magistrate failed in their duties and acted contrary to

law. None of the charges in this case warrant such strict pre-trial release provisions.

d. Even if the court had jurisdiction from the onset, actions by the magistrate judge during arraignment deprived Romero of due process thus depriving the court of further jurisdiction

On February 25, 2015 Romero attended the arraignment for the present action in front of

Judge Donna Bevacqua-Young. During that hearing the judge arraigned several other individuals

for various offenses and infractions, including traffic tickets and other minor infractions such as

failure to wear seatbelts, etc. She also arraigned others on charges of DWI. Despite stating that

he did not wish to enter a plea the judge entered one on Romeros behalf stating that she was

obligated to do so based on a court rule. Romero has not retained Judge Bevacqua-Young to be

his attorney or representation and even if he wished to grant her some sort of power of attorney

to speak or plea on his behalf she is not allowed to practice law from the bench. Notwithstanding

any rule purportedly allowing the judge to enter a plea on his behalf it would still require his

consent, which he did not. Moreover it would mean that the judge must also have already

acquired jurisdiction to take any actions whatsoever.

Further, Judge Bevacqua-Young acted arbitrarily and contrary to law in placing the same,

highly restrictive, pretrial restrictions on each and every defendant regardless of even the nature

of their charge(s). It was painfully clear that she made no effort whatsoever to look at each case

individually and determine the appropriate, if any, release provisions. Given that neither she nor

the judge conducting the preliminary examination made any effort whatsoever to tailor the

pretrial release conditions as required it is highly likely that neither one made any effort to read

the statement of probable cause to determine if there was any to begin with. It was the

responsibility of either the preliminary judge or the arraigning judge to determine if probable

cause existed in this action thus properly invoking the jurisdiction of the court. When it was

found that it did not, it was proper for the judge to dismiss the complaint sua sponte. See Baca,

supra.

Because both judges failed to impose the least restrictive of the bail options and release

conditions necessary to reasonably assure that [Romero] would not pose a flight or safety risk

they both acted contrary to law (see Brown at 49) depriving Romero of due process. Bail is

not pretrial punishment and is not to be set solely on the basis of an accusation of a serious

crime. Id.

Finally, it was clear from the arraignment that the magistrate court, or at a minimum the

arraigning magistrate, is accustomed to depriving defendants of due process rights. Several

defendants in the courtroom accused of traffic violations plead not guilty to the charges. Despite

this Judge Bevacqua-Young executed sentences on nearly all of them in the same arraignment.

This action deprived them of several due process rights, including their right to face their

accuser(s), their right to be heard, their right of adjudication of facts, etc. It is well settled law

that [a] judgment rendered in violation of due process is void in the rendering State and is not

entitled to full faith and credit elsewhere. Pennoyer v. Neff, 95 U. S. 714, 732-733 (1878).

In the short time that this case has been pending the magistrate court has acted arbitrarily

and capriciously depriving Romero of due process rights. This affects the jurisdiction of the

court even if it had existed from the onset. See Klugh, supra.

CONCLUSION

This country was founded upon the principles of the common law and the Magna Carta

wherein no freeman shall be taken or imprisoned . . . [except by] the judgment of his peers or by

the law of the land. See Brown, supra. Further, our New Mexico and the United States

Constitutions both afford the people the right to due process. The fact that the officers in this

case expanded a sobriety checkpoint to a papers, please checkpoint is beyond abhorrent to the

principles of freedom within this country.

The officers conducting this arrest, including the supervisor in control of the checkpoint,

acted no differently than the Gestapo in the Third Reich demanding to see Romeros papers and

when he refused they believed it proper to imprison him. This behavior by the Nazi soldiers in

Germany ultimately resulted in incredible injury to the people in that country which culminated

in the Nuremberg Trials. It goes without saying that if this type of behavior by police officers is

tolerated our great country will soon look no different than Hitlers Germany and a great many

people will be harmed. It should be remembered that most of the Nazi officials were found guilty

and sentenced to death or life imprisonment. Such behavior from those with the such power and

who are armed with weapons should not be taken lightly and should not only result in the

dismissal of this complaint but in the disciplining of those involved in the Romeros arrest.

For the foregoing several reasons, which have been supported by law and case law, the

charges in this action should have been dismissed sua sponte by one of the already-assigned

magistrates. Romero respectfully asks this court to dismiss the charges with prejudice.

Respectfully Submitted,

______________________________ Gilbert Romero, Real Party in Interest Without Prejudice, UCC 1-308/3-402 c/o PO Box 2077 Santa Cruz, New Mexico

VERIFICATION AND CERTIFICATE OF SERVICE

Executed by the voluntary act of My own hand in the old, underlying, original Santa Fe County, in the underlying, original New Mexico Republic, and is dated this second day of the third month, in the year two thousand and fifteen, Anno Domini, in the two-hundred and thirty-ninth year of the Independence of America. __________________________________ Romero, Gilbert, Real Party in Interest

Certificate of Service

I certify that on the date of filing hereof, a copy of the foregoing Verified Motion to Dismiss for Lack of Jurisdiction was served on the plaintiff, through the First Judicial District Attorney at the address: PO Box 2041, Santa Fe, NM 87504. By: _____________________________________

Documents

Traffic-Mtn Dismiss -DUI Checkpoint