- Associated Press - Saturday, September 6, 2014

ALBUQUERQUE, N.M. (AP) - Some attorneys on Friday questioned whether Albuquerque police acted improperly when they searched a cellphone to find a woman who was later shot and killed by an officer.

A search-warrant affidavit shows police looked through 19-year-old Mary Hawkes’ cellphone without a warrant in order to identify her, the Albuquerque Journal reported (https://bit.ly/1w1f8Pe ).

According to the documents, Officer Sonny Molina ran a check of the license plate of the truck Hawkes was driving April 21. When it did not turn up in the state vehicle database, Molina followed the truck and found it empty. Molina found a cellphone in the vehicle console. After determining it didn’t belong to the stolen truck’s owner, Molina looked at the cellphone data and saw Hawkes’ Facebook account. Police downloaded information from the phone to help locate an address for Hawke.

Hours later, Officer Jeremy Dear was pursuing Hawkes in a trailer park when police say she pulled a weapon on him. Dear fired his gun. An autopsy showed Hawkes died from three gunshot wounds to the head, neck and chest. A toxicology report revealed Hawkes had a high concentration of methamphetamine in her system.

A search warrant that includes the phone’s data was executed 10 days after the incident and filed in District Court in August. The search may not be considered lawful, according to some constitutional law experts.

“Old-fashioned Fourth Amendment law has established when there are no exigent circumstances law enforcement must seek a warrant,” said Gloria J. Browne-Marshall, associate professor of constitutional law at John Jay College in New York City. “It doesn’t appear there were exigent circumstances in this case.”

Police spokeswoman Janet Blair said the department has no specific policies on searching cellphones. She said Molina’s cellphone search is still being investigated by the department’s Internal Affairs unit. But she declined to comment on whether the search was considered constitutional.

Greg Gaudette, an attorney representing Hawkes’ family, said he thinks police only made the effort to get a warrant because Hawkes was killed - not for being suspected in auto theft.

“I seriously doubt the purpose of this warrant was to crack some sort of car theft ring,” Gaudette said. “I think this is a subterfuge to get at information involving her death. We want law enforcement to do their job and impartially investigate. Maybe this is the way it’s done, but it seems to me that nobody’s putting all their cards on the table. They’re not being very transparent.”

Hawkes’ shooting has also evoked outcry because of the lack of video from Dear’s lapel camera. Taser International, the camera’s manufacturer, said in June that it did not know why Dear’s camera failed to record the incident. Dear remains on administrative assignment.

Albuquerque police have been involved in 41 police shootings - 27 of them fatal - since 2010.


Information from: Albuquerque Journal, https://www.abqjournal.com

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