A-1-CA-35497 | Omnilex

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Court of Appeals of New Mexico
Filed 2/14/2019 11:15 AM
Mark Reynolds

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Court of Appeals of New Mexico
Filed 2/14/2019 11:15 AM

Filing Date: February 14, 2019 f >
No. A-1-CA-35497 Mark Reynolds |
STATE OF NEW MEXICO,

Plaintiff-Appellant,
v.
SOMER D. WRIGHT,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY
Matthew G. Reynolds, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM

for Appellant

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellee

OPINION

KIEHNE, Judge Pro Tempore.

{3 A reserve deputy sheriff's officer followed Defendant Somer Wright home
after seeing her truck driving erratically on the highway. When Defendant arrived
home, her truck struck a parked vehicle in the driveway, and then backed up, almost
hitting the reserve deputy’s vehicle. The reserve deputy approached Defendant’s
truck and, after she admitted to having drunk four beers, advised her to “hang tight.”
Defendant sat in her truck until a regular commissioned deputy sheriff arrived four
to five minutes later to continue the investigation. Defendant was ultimately charged
with driving while intoxicated (DWI).

{2} It is undisputed that the reserve deputy lacked statutory authority under the
Motor Vehicle Code to require Defendant to remain in her truck until the
commissioned deputy arrived on the scene. It is also undisputed that the reserve
deputy’s action constituted an arrest under New Mexico law, albeit one that did not
violate the Fourth Amendment. The question we must decide is whether the arrest
was constitutionally unreasonable under Article II, Section 10 of the New Mexico
Constitution. The district court found that the reserve deputy’s action was
unconstitutional, and suppressed all evidence obtained by law enforcement after the

reserve deputy directed Defendant to “hang tight.” The State now appeals.

{3} We conclude that the arrest was constitutionally reasonable, because the
State’s strong interest in apprehending and prosecuting drunk drivers outweighed
the minor intrusion on Defendant’s privacy rights. We therefore reverse the district
court’s suppression order.

BACKGROUND

{4 On the evening of March 15, 2014, Torrance County Reserve Deputy Roy
Thompson was on duty in a marked patrol car belonging to the Torrance County
Sheriff's Department. He wore a uniform and badge that identified him as a deputy
and were largely indistinguishable from those of a full-time regular deputy.
Thompson was traveling down Highway 41 when he was approached from behind
by two vehicles. Believing they were exceeding the 55 mile-per-hour posted speed
limit, Thompson pulled off the highway to let those vehicles pass. The headlights on
one of the vehicles kept moving “back and forth,” and as Thompson pulled over, one
of the vehicles, a white Dodge truck driven by Defendant, crossed the outer white
line and nearly struck Thompson’s vehicle. Thompson’s radar showed that
Defendant’s truck was traveling at sixty-eight miles per hour, and Thompson sped
up to around eighty miles per hour and passed another vehicle to catch up with
Defendant. While traveling behind Defendant, Thompson used his personal cell
phone to contact Deputy Ron Fulfer, the only full-time deputy on duty in Torrance

County that evening, who instructed Thompson to follow the truck and initiate a stop

only if necessary to do so for safety reasons. Thompson also ran the truck’s license
plate number and obtained Defendant’s address. Thompson followed the truck to a
private residence matching the vehicle’s registered address. When Defendant pulled
the truck into her driveway, she struck another vehicle that was already parked there.
Defendant backed up after hitting the parked car, and according to Thompson, nearly
struck his patrol car! as he pulled up behind Defendant’s truck and parked on the
highway. Though he never activated his emergency lights, Thompson did shine the
patrol car’s spotlight on the now-stationary truck before approaching Defendant on
foot. Defendant remained in the driver’s seat of the truck, with the engine running
and the lights on.

{5} Thompson identified himself as a reserve deputy, and pointed out to
Defendant that she had hit the vehicle in the driveway and nearly hit his patrol car,
to which Defendant responded by stating, in substance, that the car in her driveway
was hers, and she could hit it if she wanted to. At that point, Thompson smelled the
odor of alcohol and asked if Defendant had been drinking. She acknowledged that
she had consumed “four green beers,” apparently in celebration of the then
upcoming St. Patrick’s Day holiday. Thompson instructed Defendant to “hang tight”

until Deputy Fulfer arrived. Thompson then returned to and sat in his patrol car.

'Thompson testified that he did not believe Defendant was attempting or
intended to flee.

Defendant followed Thompson’s direction by remaining in her vehicle, and
approximately four to five minutes later, Deputy Fulfer arrived, conducted a DWI
investigation, and arrested Defendant for DWI. Defendant was ultimately charged
with aggravated DWI, contrary to NMSA 1978, § 66-8-102(A), (D)(1) (2010,
amended 2016), which carries a penalty of up to ninety days’ imprisonment and a
fine of not more than $500. See § 66-8-102(E).

{6} | Defendant moved to suppress the evidence obtained after Deputy Fulfer
arrived on the scene, arguing that it was obtained as a result of an unlawful seizure
in violation of Article II, Section 10 of the New Mexico Constitution. The district
court granted Defendant’s suppression motion following a hearing, concluding that
(1) Thompson’s “temporary detention” of Defendant constituted an “arrest” within
the meaning of NMSA 1978, § 66-8-124(A) (2007) (providing that “[n]o person
shall be arrested for violating the Motor Vehicle Code... or other law relating to
motor vehicles punishable as a misdemeanor except by a commissioned, salaried
peace officer who, at the time of arrest, is wearing a uniform clearly indicating the
peace officer’s official status”); (2) Defendant’s arrest was not authorized by Section
66-8-124(A) because Thompson was not a commissioned, salaried deputy; and
(3) Defendant’s arrest, while not violating the Fourth Amendment, did violate

Article I], Section 10 of the New Mexico Constitution. The State now appeals.

DISCUSSION

(7; “Appellate review of a motion to suppress presents a mixed question of law
and fact.” State v. Paananen, 2015-NMSC-031, 910, 357 P.3d 958 (internal
quotation marks and citation omitted). “We review the [district] court’s ruling on a
defendant’s motion to suppress to determine whether the law was correctly applied
to the facts, viewing them in the manner most favorable to the prevailing party.”
State v. Ortiz, 2017-NMCA-062, 99, 400 P.3d 312 (alteration, internal quotation
marks, and citation omitted), cert. denied, 2017-NMCERT-___ (No. S-1-SC-36492,
June 22, 2017). “While we afford de novo review of the [district] court’s legal
conclusions, we will not disturb the [district] court’s factual findings if they are
supported by substantial evidence.” /d. (internal quotation marks and citation
omitted).

{83} We begin our analysis by setting out several undisputed legal and
constitutional precepts that would normally serve as building blocks of an analysis
under Article II, Section 10. First, the State concedes that Thompson’s actions in
temporarily detaining Defendant amounted to an “arrest” as that term is used in
Section 66-8-124(A). See State v. Slayton, 2009-NMSC-054, ¥ 20, 147 N.M. 340,
223 P.3d 337 (concluding that “temporary detentions are covered under the term
‘arrest’ as used in Chapter 66 as well as custodial arrests”); State v. Bricker, 2006-

NMCA-052, 4 9, 139 N.M. 513, 134 P.3d 800 (same). The State also agrees, as it

must, that Thompson was not a commissioned, salaried peace officer under Section
66-8-124(A) and therefore acted without statutory authority when he temporarily
detained Defendant. Neither party disputes that Thompson’s temporary detention of
Defendant, although statutorily unauthorized, did not violate the Fourth
Amendment. See Slayton, 2009-NMSC-054, J 30-33 (holding that the defendant’s
statutorily unauthorized detention by a police service aide did not violate the Fourth
Amendment). Finally, there is no dispute that Thompson was acting in his capacity
as a reserve deputy on behalf of Torrance County when he began following
Defendant’s vehicle and that his temporary detention of Defendant therefore
amounted to a seizure by a state actor. See id. J§ 21-27. Given the parties’ consensus
on these matters, the sole issue before us is whether Thompson’s actions violated
Article I, Section 10 of the New Mexico Constitution, which guarantees the right to
be free “from unreasonable searches and seizures.”

49} Our Supreme Court has often interpreted Article II, Section 10 to provide
significantly greater protections than those afforded under the Fourth Amendment.
See, e.g., State v. Cardenas-Alvarez, 2001-NMSC-017, Jf 2, 5, 130 N.M. 386, 25
P.3d 225 (holding that extended detention of a defendant at border checkpoint was
unlawful under Article II, Section 10); State v. Gomez, 1997-NMSC-006, {ff 39, 44,
122 N.M. 777, 932 P.2d | (rejecting federal automobile exception to warrant

requirement in favor of greater protections under Article II, Section 10); State v.

Attaway, 1994-NMSC-011, 49 22, 25, 117 N.M. 141, 870 P.2d 103 (holding that
Article II, Section 10 requires officer executing search warrant to “knock and
announce”); Campos v. State, 1994-NMSC-012, J§ 10, 14, 117 N.M. 155, 870 P.2d
117 (requiring warrantless arrest to be based on both probable cause and sufficient
exigent circumstances). New Mexico courts have specifically applied this greater
constitutional protection to motorists. See Cardenas-Alvarez, 2001-NMSC-017, 4 15
(stating that “[t]he extra layer of protection from unreasonable searches and seizures
involving automobiles is a distinct characteristic of New Mexico constitutional
law[,]” and observing that the New Mexico Supreme Court has “dismissed the
notion that an individual lowers his expectation of privacy when he enters an
automobile[.]”’).

{109} When conducting an analysis under Article II, Section 10, we initially
consider “whether the right being asserted is protected under the federal
Constitution.” Cardenas-Alvarez, 2001-NMSC-017, 4 6. We agree with the district
court and the parties that Thompson’s statutorily unauthorized, temporary detention
of Defendant did not violate the Fourth Amendment. Our Supreme Court previously
addressed the Fourth Amendment’s application to a seizure made by a non-
commissioned police service aide in violation of Section 66-8-124(A), the same
statute at issue here, in Slayton, 2009-NMSC-054, and concluded that the service

aide’s lack of statutory authority to arrest the defendant did not by itself amount to

a Fourth Amendment violation. /d. § 33 (stating that “the Fourth Amendment is not
concerned with a state actor’s violation of a statute governing who may seize a
person suspected of committing a crime[.]”). The Slayton Court, however, did not
have occasion to consider whether the New Mexico Constitution would have
prohibited the seizure. This case requires us to consider the question that Slayton left
unanswered—does the seizure of a defendant by a government actor lacking
statutory authority to act violate Article II, Section 10, thus requiring suppression of
the evidence gathered as a result of the seizure?

{114}. When considering an Article IJ, Section 10 claim, “New Mexico courts have
consistently rejected federal bright-line rules in favor of an examination into the
reasonableness of officers’ actions under the circumstances of each case.” State v.
Ochoa, 2009-NMCA-002, § 24, 146 N.M. 32, 206 P.3d 143; see State v. Granville,
2006-NMCA-098, 7 18, 140 N.M. 345, 142 P.3d 933 (stating that “[i]n all cases that
invoke Article II, Section 10, the ultimate question is reasonableness”). “The
Constitution only proscribes...those searches and seizures which are
unreasonable.” State v. Werner, 1994-NMSC-025, § 11, 117 N.M. 315, 871 P.2d
971. Evidence seized in violation of Article II, Section 10 must be suppressed. See
State v. Gutierrez, 1993-NMSC-062, 4 45, 116 N.M. 431, 863 P.2d 1052 (“[T]he
New Mexico constitutional prohibition against unreasonable searches and seizures

requires that we deny the state the use of evidence obtained in violation of Article

II, Section 10 in a criminal proceeding.”). Analysis of constitutional reasonableness
in this case is guided largely by this Court’s previous decisions in State v. Rodarte,
2005-NMCA-141, 138 N.M. 668, 125 P.3d 647, and State v. Bricker, 2006-NMCA-
052. In Rodarte, we addressed whether the New Mexico Constitution allows “an
officer [to] arrest an individual solely on the basis of probable cause that a minor
criminal offense for which jail time is not authorized has been committed.” 2005-
NMCA-141, 41. In that case, a police officer subjected the defendant to a full
custodial arrest for being a minor in possession of alcohol, a misdemeanor offense
which carried with it no jail time. /d. [§ 3-4. Four years earlier, in Atwater v. City of
Lago Vista, 532 U.S. 318, 323 (2001), a narrow majority of the Supreme Court of
the United States adopted a bright-line rule that an arrest based solely on probable
cause for a minor offense for which jail time was not authorized (in that case, a
seatbelt violation) was reasonable under the Fourth Amendment. In a forceful
dissent, Justice O’Connor took the view that reasonableness under the Fourth
Amendment should be determined by balancing “the degree to which [the arrest]
intrudes upon an individual’s privacy” and “the degree to which [the arrest] is needed
for the promotion of legitimate governmental interests.” /d. at 361 (quoting
Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). Justice O’Connor stated that “the
penalty that may attach to any particular offense seems to provide the clearest and

most consistent indication of the [s]tate’s interest in arresting individuals suspected

of committing that offense.” /d. at 365 (quoting Welsh v. Wisconsin, 466 U.S. 740,
754 n.14 (1984)). Thus, under this calculus, probable cause alone does not make an
arrest reasonable where an offense is not punishable with jail time; rather, there must
be “ ‘specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant [the additional] intrusion’ of a full custodial
arrest.” /d. at 366 (alteration in original) (quoting Terry v. Ohio, 392 U.S. 1, 21
(1968)). In Rodarte, this Court adopted Justice O’Connor’s approach as being more
consistent with New Mexico’s jurisprudence under Article IT, Section 10, which has
stressed the importance of case-by-case determinations of reasonableness and
avoided bright-line rules. 2005S-NMCA-141, 9§ 13-16.

{123 The next year, in Bricker, 2006-NMCA-052, we addressed the constitutional
reasonableness of a full custodial arrest of a defendant suspected of driving with a
suspended license, a misdemeanor punishable by a jail term of up to 364 days under
NMSA 1978, Section 66-5-39(A) (2013). Because the governing Motor Vehicle
Code provisions, Sections 66-8-122(G) and 66-8-123(A), required the issuance of a
citation and the release of an offending motorist in lieu of a custodial arrest unless
the underlying license suspension resulted from the violation of certain DWI-related
laws, and the state presented no evidence about the reason for the defendant’s license
suspension, this Court therefore concluded that the defendant’s custodial arrest

violated the statute and was unlawful. /d. J 14. To determine whether evidence

obtained as a result of the statutorily unauthorized arrest should be suppressed, we
considered whether the arrest violated Article II, Section 10 and applied the
balancing-of-interests test that we adopted in Rodarte. Bricker, 2006-NMCA-052,
4 14, 23, 26. This Court pointed to the statute’s requirement that offenders be cited
and released as evincing the Legislature’s intent “to protect individual liberty over
perceived governmental need,” an intent which we characterized as having
“constitutional bearing.” /d. § 29. This Court also noted that the possibility of jail
time faced by one convicted of driving with a suspended license did not alter the
analysis, explaining that “[jJailability cannot justify overlooking an unlawful
custodial arrest and permitting searches based on the unlawful arrest” because the
“intrusion upon one’s liberty is no less significant in cases in which the offense is
jailable than in cases in which the offense is non-jailable.” /d. 427. In all, we
concluded in Bricker that the defendant’s custodial arrest, made without statutory
authority, failed the test of constitutional reasonableness under Article II, Section
10. Bricker, 2006-NMCA-052, § 20.

{13} In assessing the constitutional reasonableness of Thompson’s detention of
Defendant in this case, we must apply the balancing-of-interests test that we
employed in Rodarte and Bricker, which, as indicated, requires us to evaluate, “on
the one hand, the degree to which [the seizure] intrude[d] upon [Defendant]’s

privacy and, on the other, the degree to which [the seizure was] needed for the

promotion of legitimate governmental interests.” Atwater, 532 U.S. at 361
(O’Connor, J., dissenting) (internal quotation marks and citation omitted). Applying
this balancing test to the facts of this case, we hold that Thompson’s temporary
detention of Defendant was constitutionally reasonable. Under the totality of the
circumstances, the intrusion on Defendant’s privacy was minimal. After all, despite
observing Defendant’s speeding and erratic driving on a public highway, Thompson
did not attempt to pull her over or activate the emergency lights on his patrol car.
Instead, he followed Defendant to her home and, once there, shone a spotlight on her
truck and approached it by foot. Upon making contact with Defendant, he spoke to
her briefly, instructed her to remain where she was, and returned to his patrol car,
where he waited for Deputy Fulfer’s arrival. Defendant remained in the driver’s seat
of her truck, with the engine running, for about four or five minutes until Deputy
Fulfer arrived to take charge of the investigation. See generally State v. Nance, 2011-
NMCA-048, § 26, 149 N.M. 644, 253 P.3d 934 (stating that police intrusion into the
defendant’s privacy was “de minimis” and a “slight intrusion” where they asked him
to stand outside his home for fifteen minutes during a DWI investigation).
Thompson did not ask to see Defendant’s driver’s license, registration, or insurance
information; he did not instruct Defendant to step out of her truck or wait in his patrol

car; he did not brandish a weapon; and he did not place Defendant in handcuffs or

otherwise physically restrain her freedom of movement. He simply told Defendant
to “hang tight” until Deputy Fulfer arrived.

{144 By contrast, under the circumstances of this case, the State’s need to
temporarily detain Defendant far outweighed whatever brief, minimal privacy
intrusion that Defendant may have experienced. It is well recognized that the State’s
interest in removing drunk drivers from its roadways is compelling. See State v.
Johnson, 2001-NMSC-001, 17, 130 N.M. 6, 15 P.3d 1233 (noting that “the public
interest and potential harm posed by intoxicated drivers is so compelling that the
offense of DWI is a strict liability crime”) (citation omitted); Nance, 2011-NMCA-
048, { 26 (concluding that the state’s interests outweighed the defendant’s in part
because of a “compelling public interest in eradicating DWI occurrences and their
potentially deadly consequences” (alteration, internal quotation marks, and citation
omitted)). DWI is a more serious offense than being a minor in possession of alcohol,
the offense involved in Rodarte, or driving with a suspended license, the offense at
issue in Bricker. It also bears emphasis that by the time Thompson detained
Defendant, he had seen her drive over the speed limit, weave back and forth on the
highway, collide with a parked vehicle and nearly hit his patrol car, and had heard
her admit to consuming four beers. See City of Santa Fe v. Martinez, 2010-NMSC-
033, 4 16, 148 N.M. 708, 242 P.3d 275 (“[T]he warrantless arrest of one suspected

of committing DWI is valid when supported by both probable cause and exigent

circumstances.”). Exigent circumstances also weighed in favor of a temporary
detention, because otherwise Defendant might have entered her house and refused
to come back outside once Deputy Fulfer arrived, thereby delaying and complicating
the DWI investigation by requiring Deputy Fulfer to seek an arrest warrant in order
to enter Defendant’s home. See Nance, 2011-NMCA-048, § 23 (rejecting conclusion
that dissipation of alcohol alone is exigency enough to justify warrantless entry into
the home). Alternatively, Defendant might have tried to drive away, a circumstance
which could have posed a serious danger to the public.

15}. Defendant offers several reasons to uphold the district court’s suppression
order, but none of them are persuasive. First, she argues that near-controlling weight
should be given to Thompson’s violation of Section 66-8-124(A), which, as she puts
it, limits the authority to arrest “to those possessing appropriate law enforcement
authority, training, and experience thereby protecting the same privacy and liberty
interests protected by Article II, Section 10.” While in no way condoning
Thompson’s violation of the statute, we decline Defendant’s invitation to treat that
violation as dispositive of our constitutional analysis, an approach which would be
contrary to our Supreme Court’s aversion to bright-line rules when applying Article
II, Section 10, and its direction that courts employ a case-by-case approach in
determining reasonableness. Moreover, unlike the statute at issue in Bricker, which

embodied the Legislature’s intent that no one should be subjected to a full custodial

arrest for driving on a suspended license (provided that the suspension was unrelated
to a violation of the DWI laws), Section 66-8-124(A), the statute at issue here, does
not reflect a similar legislative policy. Rather, Section 66-8-124(A) merely limits the
class of persons who may subject a motorist to a temporary detention or arrest. It
says nothing about, and does not detract from, the seriousness of DWI or the State’s
compelling interest in apprehending drunk drivers.

{16} Second, pointing to Thompson’s relative lack of training and experience,
Defendant contends that upholding the temporary detention here would
“encourage[ | abuse and arbitrary governmental intrusion.” Significantly, however,
Defendant does not argue, much less show, that Thompson’s relative lack of
experience and training harmed her in any way, and therefore suppression is not
justified on the basis of this undeveloped “lack of training” argument. See State v.
Guerra, 2012-NMSC-014, 4 21, 278 P.3d 1031 (reiterating that appellate courts do
not review unclear or undeveloped arguments). This is not to suggest that we are
unsympathetic to Defendant’s stated concerns, and we take this opportunity to warn
law enforcement agencies that this opinion does not give them carte blanche to allow
reserve deputies to detain motorists. Under New Mexico’s case-by-case approach in
reviewing claimed violations of Article II, Section 10, it is easy to envision a case
involving a greater intrusion on a motorist’s privacy than occurred here, or a less

compelling state interest than existed here, either of which might be sufficient to

justify suppression. A county sheriffs conduct in encouraging or turning a blind eye
to a reserve deputy’s violation of Section 66-8-124(A) jeopardizes the legitimate
enforcement of the Motor Vehicle Code.

17} Third, Defendant argues that Thompson’s actions in speeding to catch up with
her truck, in closely following her, and in directing her to remain in her vehicle were
“entirely unnecessary,” concluding that the resulting detention did not promote any
legitimate governmental interests. Defendant also argues that any police concern that
she might try to enter her home, thus making the investigation more difficult, was
speculative; that requiring her to remain in her truck achieved only a “minor
convenience” for the police; and that the State’s interests could have been satisfied
by a simple police request that Defendant consent to stay outside until Deputy Fulfer
arrived. We disagree with these arguments. As Thompson explained, he sped up to
follow Defendant to help ensure that she would not endanger other motorists,
including those who might be traveling in the opposite direction (fortuitously, there
were none). And allowing Defendant to enter her home in these circumstances would
likely have impeded the police investigation.

18} Finally, Defendant argues that Thompson had violated Section 66-8-124(A)
on previous occasions, demonstrating that his present “violation of the statute was
not accidental or unknowing[,]” and therefore should not be considered de minimis.

While defense counsel questioned Thompson about other cases in which he had been

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involved, this inquiry did not elicit any admissions, and defense counsel did not
introduce any evidence into the record about the facts and circumstances of any other
cases. We therefore do not consider this argument. See Proper v. Mowry, 1977-
NMCA-080, ¥ 37, 90 N.M. 710, 568 P.2d 236 (“Remarks, arguments and statements
of lawyers are not evidence.” (internal quotation marks and citation omitted)); State
v. Romero, 1975-NMCA-017, 4 2, 87 N.M. 279, 532 P.2d 208 (“Matters
outside the record present no issue for review.”).

CONCLUSION

{19} We reverse the district court’s suppression order and remand this case for

further proceedings consistent with this opinion.

EMIL J. KIVHNE, Judge Pro Tempore

20} IT ISSO ORDERED.

I CONCUR:

hd. A. RL)

HENRY M. BOHNHOFF, Judge Pro Tempore

JULIE J. VARGAS, Judge (dissenting).

VARGAS, Judge (dissenting).

21}. The State unquestionably has a compelling interest in deterring drunk driving
and maintaining highway safety. Cf Nance, 201 1-NMCA-048, § 26 (concluding the
state’s interests outweighed the defendant’s in part because of a “compelling public
interest in eradicating DWI occurrences and their potentially deadly consequences”
(internal quotation marks and citation omitted)). I do not, however, believe that our
jurisprudence supports the majority’s conclusion that the exigent circumstances of
this case allowed for the warrantless, unauthorized arrest of Defendant. Cf id. J 23
(rejecting conclusion that dissipation of alcohol alone is exigency enough to justify
warrantless entry into the home); see Majority Op. ¥ 14. Instead, I agree with the
district court that, on balance, Thompson’s actions were constitutionally
unreasonable under Article II, Section 10 of the New Mexico Constitution, and the
evidence obtained after Deputy Fulfer arrived on the scene should be suppressed.
{22} The majority’s efforts to balance the State’s interests with Defendant’s
interests analyzes Defendant’s interests too narrowly, and in doing so, omits
important considerations that, though more conceptually than directly related to
Defendant, are still highly relevant to a reasonableness analysis.

23} While the majority describes the intrusion on Defendant’s privacy as
“minimal,” the detention interfered with Defendant’s ability to enter her own home

after parking in her own driveway. The home is undeniably afforded the highest

level of protection by Article II, Section 10. State v. Nyce, 2006-NMSC-026, {| 12,
139 N.M. 647, 137 P.3d 587. While I recognize that this case does not implicate a
search or seizure taking place inside the home, it seems relevant—indeed,
compelling—that the intrusion impeded Defendant’s ability to enter her home and
move freely within her property. This limitation, however, is given little
consideration by the majority.

24 Further, and perhaps more importantly, the majority fails to consider the
broader public interest in requiring that police and their volunteer officers comply
with our statutory laws. Cf State v. Jones, 1998-NMCA-076, ¥ 15, 125 N.M. 556,
964 P.2d 117 (acknowledging public interest in law enforcement compliance with
DWI notice laws was strong enough to warrant reaching potentially moot issue on
appeal). As a member of the public, Defendant shares this interest. And, it is this
interest that I conclude ultimately tips the balance in Defendant’s favor. In reaching
this conclusion, I note that we are tasked, not only with settling the dispute before
us, but also with the responsibility of shaping the parameters of police conduct and
establishing standards to measure and inform law enforcement practices. See State
v. Ryon, 2005-NMSC-005, J 11, 137 N.M. 174, 108 P.3d 1032 (“Although our
inquiry is necessarily fact-based[,] it compels a careful balancing of constitutional
values, which extends beyond fact-finding to shape the parameters of police conduct

by placing the constitutional requirement of reasonableness in factual context[.]”

(internal quotation marks, and citation omitted)); Attaway, 1994-NMSC-011, 4 9-10
(acknowledging that search and seizure jurisprudence reflects appellate efforts to
“establish objective standards to measure and inform law enforcement practices”).

425} The Legislature’s intention that individuals be free from arrest by untrained
citizens is clear from the plain language of Section 66-8-124(A), authorizing only
commissioned, salaried peace officers to arrest. See Slayton, 2009-NMSC-054, § 27
(“[I]n setting forth the specific arrest procedures in Section 66-8-124, the Legislature
intended to abrogate the common law right to citizens’ arrests for suspected
violations of motor vehicle laws.”). Thompson’s testimony made clear that he was
aware he lacked statutory authority to stop Defendant. He nonetheless found it
appropriate to reach speeds well in excess of the posted speed limit in order to follow
Defendant home, shine a spotlight into Defendant’s property, light up her parked
car, and prevent her from entering her home. Thompson’s disregard for the statutory
limitations to his authority is particularly troubling in light of suggestions throughout
the record and briefing that this is not the first occasion on which Thompson has
disregarded the limitations of his position. Indeed, at the suppression hearing,
Thompson admitted that on one occasion, he engaged his emergency lights and
pulled over a defendant, though, when asked by defense counsel, he didn’t recall the
stop having been held to be illegal. Thompson also admitted to having detained

another defendant, but when asked by defense counsel whether the evidence was

suppressed and the case dismissed because of his “illegal detention,” he responded
only that he remembered “some part of the evidence was suppressed.” The majority
declined to consider these cases, concluding that defense counsel’s questions “did
not elicit any admissions[.]” Majority Op. § 18. While the majority is correct that
Thompson avoided admitting that the evidence in those cases was suppressed as a
result of his wrongful conduct, in both of the cases he admitted to having detained
the defendants, conduct for which he had no authority. Defendant’s and the public’s
interest in ensuring that the police and their volunteer officers comply with our
statutory laws should be considered when determining whether Thompson’s actions
were constitutionally reasonable under Article II, Section 10.

{26} Further, I am not persuaded by the majority’s argument that exigent
circumstances weighed in favor of Thompson’s temporary, though unlawful
detention of Defendant. Majority Op. § 14. The majority reasons that had Thompson
not detained her, the investigation may have been more difficult because Deputy
Fulfer would have had to seek an arrest warrant to enter her home, thereby allowing
the alcohol in her system to dissipate. Jd. Alternatively, the majority reasons,
Defendant may have driven away. /d. The record is devoid of any evidence that
Defendant planned to drive away, and the majority concedes, “Thompson testified
that he did not believe Defendant was attempting or intending to flee.” Jd. 7 4 n.1.

Further, dissipation of alcohol is but one consideration in the reasonableness

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analysis, see Nance, 2011-NMCA-048, § 23, and when considered in light of
Defendant’s interest in entering her own home and moving freely within her property
and the added interest of requiring the police and its volunteer officers to comply
with our statutory law, I believe it is insufficient to render Thompson’s actions
reasonable. Thompson should have waited for Officer Fulfur, who, if necessary,
could have obtained a warrant. I believe that the balance of factors weighs in favor
of affirming the district court’s determination that Thompson’s arrest of Defendant,
which itself was a violation of Section 66-8-124(A), was unreasonable under Article
II, Section 10 and required the suppression of the evidence obtained after Officer
Fulfur arrived. Absent suppression, I have little confidence that Thompson’s
unlawful actions will be deterred. See State v. Santiago, 2009-NMSC-045, 4 5, 147
N.M. 76, 217 P.3d 89 (holding that courts suppress evidence obtained as fruit of an
unconstitutional search or seizure to redress and deter violations of the Fourth
Amendment). I would affirm the district court’s order granting the motion to

suppress.

February 14, 2019- State of New Mexico v. Somer D. Wright, No. A-1-CA-35497

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