Paedophile one step closer to freedom

ALBUQUERQUE, NM -- A Tijeras man accused of raping an 8-year-old boy and filming it while the child tried to get away is one step closer to freedom.

State District Judge Denise Barela Shepherd ruled this week that Bernalillo County sheriff's deputies had gone too far in searching the Tijeras home of Joseph Martinez in April 2009.

Deputies Nathan Kmatz and Robert Lind, dispatched to the Martinez home in the early afternoon of April 14, 2009, for a static or hang-up 911 call, saw no signs of forced entry as they circled the home, nor did they see anyone inside. They found a closed but unlocked sliding door on the second-story balcony and entered.

Although deputies lacked emergency grounds for entering, according to the ruling, they performed a detailed search during which they found a box with DVD movie cases atop a bed and leaned over close to see what was in it. The deputies called a detective, who arrived to gather information for a search warrant affidavit. While the detective was there, Martinez arrived at his home and was taken into custody.

Because the search was illegal, the evidence seized by deputies cannot be used at trial, the judge ruled, seriously undermining the state's ability to continue prosecuting the case against the 52-year-old Martinez, who is being held without bond on related federal charges such as dozens of counts of criminal sexual penetration of a child, sexual exploitation of children and possession of marijuana.

District Attorney's Office spokesman Pat Davis said the opinion could have a chilling effect on police response to 911 calls and create the possibility that someone in desperate need of help won't get it.

"Cops go to hundreds of these (calls)" he said. "And cops find people in their homes who need help. This has an effect that cops in the future could be trained not to enter a house. I know this is about how far they can go in looking, but the practical effect is that officers are going to be more hesitant to do a thorough check on cases that begin like this one."

"This is a great victory for the Constitution and specifically for the Fourth Amendment," Martinez attorney Sam Bregman said of the latest ruling. "Again, it reflects the fact that the Constitution does not bend based on the seriousness of the allegations."

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