CA10: Suppression as remedy for violation of Posse Comitatus Act not established, let alone clearly established

New Mexico courts did not violate clearly established federal law (under § 2254) in determining that there was no exclusionary remedy for an alleged violation of the Posse Comitatus Act. Gonzales v. Bravo, 2014 U.S. App. LEXIS 6236 (10th Cir. April 4, 2014):

Gonzales argues that the district court erred in failing to recognize the alleged PCA violations committed against him. His underlying claim is that New Mexico obtained his conviction in violation of the PCA because an Air Force investigator conducted a criminal investigation of a civilian. The district court said that his claim is not cognizable under § 2254 because the proper remedy violations of the PCA is a fine and jail time, not suppression of evidence. It acknowledged that New Mexico’s state exclusionary rule applies when there are widespread and repeated violations of the PCA, but contrasted that by noting that neither the Tenth Circuit nor the Supreme Court has recognized such a rule.4 Thus, it concluded that even had the petitioner shown widespread and repeated violations of the PCA, his claim would still have failed because the district court could not say that New Mexico’s decision not to apply an exclusionary rule was an unreasonable application of clearly established federal law.

4. See United States v. Hutchings, 127 F.3d 1255, 1259 (10th Cir. 1997) (“[W]e need not reach the question of whether exclusion of evidence is an appropriate remedy when federal military personnel collect evidence in violation of the PCA.”).