ALBUQUERQUE, N.M. (KRQE) – Eight months after the Bernalillo County District Attorney’s Office sued the Second Judicial District Court seeking criminal suspects GPS data, a judge has sided with the DA. The decision, filed in district court Monday, indicates that the court’s pretrial services division improperly withheld suspects GPS monitoring records, which should be considered “public records.”

Bernalillo County DA Raúl Torrez gave his reaction to the outcome of the lawsuit during a news conference Tuesday, calling the judge’s decision “favorable.” The lawsuit, he said, was an extraordinary step to retrieve data he believes his prosecutors and law enforcement authorities should be able to receive without much friction.

“[The court] asserted, I think for the first time in this state, some confidentiality or privacy right for a criminal defendant who stood charged of these types of crimes, and have been ordered to be subject to pretrial supervision under GPS monitoring,” Torrez said. “The purpose for seeking those records was to number one, establish the whereabouts of these two individuals, but also just as importantly, to test the legal rationale that was put forward by the court in denying our requests for access to these records.”

Before the lawsuit, Torrez said his office sought the GPS location data from two criminal suspects. Those suspects were Jesse Mascareno-Haidle who is accused in dozens of burglary cases and Devin Munford, a man accused in a murder case.

Prosecutors sought their data, alleging both suspects were accused in subsequent crimes while out on pretrial release. The DA says both of its requests for the GPS data were denied, with the court citing concerns about the criminal defendant’s privacy.

“Much like other offenders you’ve seen this year, they go on these sprees, they just start running rampant, causing death and destruction and terror,” said Deputy Commander Kyle Hartsock of the Albuquerque Police Department’s Criminal Investigations Division. “And we need to be able to move as fast as we can on them, especially if we’ve identified them and especially if we’ve identified there’s a government-ordered GPS on their ankle.”

In a seven page ruling, 13th Judicial District Court Judge Jim Noel said the Pretrial Services Division “did not base its denials” for the records on “any valid exemptions,” improperly denying the DA’s Office access to GPS records. A former New Mexico cabinet secretary in Governor Bill Richardson’s administration, Noel also served as the top administrator for the 2nd Judicial District Court from 2015 through 2020.

“In short, what the district court found is that there’s no privacy right or confidentiality right that defendants under pretrial supervision had in their whereabouts,” Torrez said of the decision. “We think it is particularly important to have access to these records in light of revelations that came out last year that the District Court and those responsible for monitoring the whereabouts of these individuals actually were not engaged in that activity on nights and on weekends.”

Torrez says giving law enforcement access to the GPS data more immediately will help solve open crimes, or event prevent further crimes. The mother of murder victim Devin Heyborne, Angel Alire spoke broadly Tuesday about the need for fixing what she called a “flawed” pretrial release system.

“We found out those fitted with GPS were hardly being monitored and how hard it is to get the location information,” Alire said. “We need to send a message to repeat offenders that we will no longer allow them to effect our lives.”

While he says he’s pleased with decision in the lawsuit, Torrez says he expects the Second Judicial District Court will appeal the ruling. He also questions if the court will truly act less resistant in the future when asked to produce GPS data on criminal suspects whereabouts.

The future access of suspects GPS data may also be complicated by a state law legislators passed earlier this year. House Bill 68, which went into effect on July 1, explicitly permits law enforcement to access pretrial GPS monitoring data without a warrant.

However, Torrez was among all 14 New Mexico district attorneys who opposed the GPS-related language contained in the final bill. The bill allows access to law enforcement access to pretrial monitoring data when “there is reasonable suspicion to believe the data will be probative.” Torrez believes that language accidently codifies a protection to the GPS data the courts retain.

“The argument put forward by the court [in the Torrez lawsuit] was that House Bill 68 actually codified this rule of confidentiality, this rule of privacy, that criminal defendants were entitled to,” Torrez said. “Judge Noel didn’t address that particular issue, but he also ruled definitively that House Bill 68 did not apply retroactively. Even if it created some new right, that right for criminal defendants would not apply to cases like ours which were filed before the passage of this particular piece of legislation.”

Torrez said he hopes lawmakers will clarify the language crafted in House Bill 68 during the 2023 regular legislative session. That session is slated to last 60 days.

“I don’t believe, and I certainly would hope, that the legislators who crafted House Bill 68, did not intend to create a privacy right or right of confidentiality for criminal defendants, either intentionally or unintentionally, in the passage of that particular provision,” Torrez said.

Under the ruling in the lawsuit, the DA’s office can now look at the GPS records of Mascereno-Haidle and Munford within the next 15 days. Torrez says its unclear if the ruling will allow his prosecutors to look at all defendants on ankle monitor or just these two.

A spokesperson for the Second Judicial District Court provided the following statement on Monday about the ruling:

“The Second Judicial District Court is committed to fully responding to all records requests that come in from the public and to diligently comply with the Inspection of Public Records Act. The Court understands the importance of each public records request and takes each request seriously. The Court has at all times acted in good faith and will continue to do so. While the Second Judicial District Court respects the analysis and decision in the Order issued on August 1, 2022, the Second Judicial District Court is evaluating its right to appeal.”

The Second Judicial District Court

The New Mexico Law Offices of the Public Defender also released a statement:

“Remember, the vast majority of people on pretrial release comply with their restrictions. Even if you think that people who have been charged with a crime should lose their privacy rights, there is a legitimate question whether their minute-by-minute whereabouts should be visible to absolutely everyone.”

General Counsel Adrianne Turner