A-1-CA-36931 | Omnilex

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Court of Appeals of New Mexico
Filed 6/25/2019 11:01 AM

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO”

STATE OF NEW MEXICO,

Plaintiff-Appellee,
V. No. A-1-CA-36931
JEREMY JAKE,

Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

Daylene A. Marsh, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Margaret Crabb, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
VANZI, Judge.
a} Defendant Jeremy Jake appeals the district court’s order denying his motion

to suppress evidence obtained from a traffic stop on the ground that the stop was not

supported by reasonable suspicion. We affirm.

ark Reynol 5

wot ete et eet
CA fe le hoo

BACKGROUND
a} At approximately 10:00 p.m. on December 21, 2016, Officer Daniel Sedillos
was driving on a two-lane road divided by a double yellow center line when he
passed Defendant traveling in the opposite direction. After observing Defendant
driving “near the center line,” Officer Sedillos made a U-turn and began to follow
Defendant. Shortly after turning around, Officer Sedillos saw Defendant swerve over
the double yellow center line with both left tires and quickly correct back into his
lane, at which point he stopped Defendant. Defendant was cited for failure to
maintain his lane, in violation of NMSA 1978, Section 66-7-317(A) (1978), which
provides,

Whenever any roadway has been divided into two or more clearly

marked lanes for traffic ... a vehicle shall be driven as nearly as

practicable entirely within a single lane and shall not be moved from

such lane until the driver has first ascertained that such movement can

be made with safety].]
Additionally, Defendant was ultimately arrested and charged with driving while
intoxicated (DWH in violation of NMSA 1978, Section 66-8-LO2(C}(2) (2016).
3) Defendant moved to suppress the evidence obtained from the traffic stop,
arguing that the initial stop violated the Fourth Amendment and Article U1, Section
10 of the New Mexico Constitution because it was not supported by reasonable
suspicion, At the suppression hearing, Officer Sedillos, the sole witness, testified to

his observations of Defendant’s driving. On cross-examination, Officer Sedillos

stated that there were no other vehicles passing Defendant at the time he saw
Defendant swerve out of his lane. While Officer Sedillos did not see any hazard
posed to another driver at the time of the swerve, he testified that if there had been
another vehicle in the oncoming lane, Defendant could have crashed into it. In
addition to Officer Sedilios’s testimony, the district court reviewed the officer's dash
cam video. The video showed four cars pass Defendant in the opposite direction
before and immediately after Officer Sedillos stopped him. Although the dash cam
did not capture the double yellow line at the point where Defendant swerved
(according to Officer Sedillos), which occurred “quite a ways” ahead of the patrol
car, Officer Sedillos testified that his view of Defendant’s car and the road was better
than that shown on the dash cam video and that he clearly saw Defendant swerve out
of his lane.

4) Atter hearing Officer Sedillos’s testimony and reviewing the dash cam video,
the district court denied Defendant's motion and entered findings of fact and
conclusions of law. The district court’s findings largely summarized Officer
Sedillos’s testimony about his observations of Defendant’s swerve. However, the
district court found that the dash cam video did not show Defendant's vehicle
crossing the center line. Although the district court found that the dash cam video
showed that at least three vehicles passed Defendant at the time of the stop, it found

that “there were no other vehicles on the road [when Defendant swerved], therefore,

—

it was not a safety issue.” Aside from restating black letter law on reasonable
suspicion, the district court did not make any relevant conclusions of law applying
the law to the facts. Defendant now appeals.

DISCUSSION

ist “Because suppression of evidence is a mixed question of law and fact, we

apply a two-part review to the district court’s denial of the motion to suppress.” State

Thy. Scharff, 2012-NMCA-087, § 8, 284 P.3d 447. “[Wle review the facts in the light

most favorable to the prevailing party, deferring to the district court’s factual
findings so long as substantial evidence exists to support those findings.” Sate vy.
Neal, 2007-NMSC-043, 915, 142 NM. 176, 164 P.3d 57. “Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” State v. Jean-Paul, 2013-NMCA-032, 44, 295 P.3d 1072 (internal
quotation marks and citation omitted). “[WJhere the district court made no findings
of fact, our practice has been to employ presumptions and as a general rule, we will
indulge in all reasonable presumptions in support of the district court’s ruling.” State
v. Zamora, 2005-NMCA-039, €8, 137 NLM. 301, 110 P.3d S517 (omission,
alteration, internal quotation marks, and citation omitted). “Our review of a district
court’s determination of whether reasonable suspicion existed is de novo based on
the totality of the circumstances.” Stare v. Levva, 201 1-NMSC-009, 7 30, 149. N.M.

A435, 250 P.3d 861.

164 As apreliminary matter, Defendant claims that the district court’s findings are
“extremely unclear and cannot be relied upon.” Defendant argues that it is unclear if
the district court found that Defendant crossed the center line because the district
court simultaneously found that (1) “Officer Sedillos ... observed both left tires of
_., Defendant’s vehicle cross over the center line[,]” and (2) “{the dash cam] video
... did not show [Defendant’s] vehicle crossing the center line.” In our view, these
are not necessarily contradictory findings. The testimony established that due to poor
lighting and the distance between Officer Sedillos’s patrol car and Defendant’s
vehicle, the dash cam video did not capture the center line at the point where Officer
Sedillos testified that he saw Defendant swerve out of his lane. And Officer Sedillos
testified that he clearly saw Defendant cross the center line and that his view was
better than that shown on the dash cam. While the district court did not explicitly
find that Defendant’s tires crossed the center line, we assume it credited Officer
Sedillos’s testimony because it denied Defendant’s motion to suppress. See State v.
Martinez, 2018-NMSC-007, @ 15-18, 410 P.3d 186 (deferring to district court's
implicit acceptance of the testifying officer’s perceptions despite inconclusive dash
cam video}; Zamora, 2005-NMCA-039, 4 8 (stating that we will indulge in all
reasonable presumptions in support of the district court’s ruling when it does not

make any findings of fact). We therefore defer to the district court’s implicit

acceptance of Officer Sedillos’s testimony that Defendant crossed over the center
line.

a; We now tum to Defendant’s argument that the stop was not supported by
reasonable suspicion. Defendant argues that Officer Sedillos did not have reasonable
suspicion to stop him because Defendant did not violate Section 66-7-317(A), as a
matter of law, because “his conduct did not create an unsafe driving condition.”
Specifically, Defendant contends that his movements must unsafely impact nearby
vehicles in order to violate Section 66-7-317(A). The State, in turn, argues that
Section 66-7-317(A) does not contain a requirement that the motorist’s lane
departure affect other traffic. Alternatively, the State argues that Officer Sedillos
made an objectively reasonable mistake of law in believing that Defendant violated
Section 66-7-317(A), despite the lack of vehicles in the immediate vicinity.

8 Before we proceed with our analysis, we note that Defendant's argument

Peon
we

requires us to clarify the elements of Section 66-7-317(A). While we recognize and
agree with the special concurrence that this statute is in need of clarification, we do
not believe that it is proper to do so in this case. First, well-established principles of
statutory construction require that we must analyze a “statute’s function within a

”

comprehensive legislative scheme” and may not consider subsections “in a
vacuum.” State v. Rivera, 2004-NMSC-001, § 13, [34 N.M. 768, 82 P.3d 939

(internal quotation marks and citation omitted); see Key v. Chrysler Motors Corp.,

1996-NMSC-038, 4 14, 121 NLM. 764, 918 P.2d 350 (LAH parts of a statute must
be read together to ascertain legislative intent. We are to read the statute in
its entirety and construe each part in connection with every other part to produce a
harmonious whole.” (citation omitted)). Our Supreme Court has recognized the
dangers of attempting to interpret statutes by analyzing certain text in isolation:
While... one part of the statute may appear absolutely clear and certain
to the point of mathematical precision, lurking in another part of the
enactment, or even in the same section, or in the history and background
of the legislation, or in an apparent conflict between the statutory
wording and the overall legislative intent, there may be one or more
provisions giving rise to genuine uncertainty as to what the
{Llegislature was trying to accomplish. In such a case, it is part of the
essence of judicial responsibility to search for and effectuate the
legislative intent—the purpose or object-——-underlying the statute.
State ex rel. Heilman v. Gallegas, 1994-NMSC-023, 4 23, 117 NLM. 346, 871 P.2d
1352.
£9} Second, to the extent the statutory construction issue has been raised in this
case, the record and the briefing before us is inadequate to permit appellate review.
As our Supreme Court has also cautioned, “[clourts risk overlooking important facts
or legal considerations when they take it upon themselves to raise, argue, and decide
legal questions overlooked by the lawyers who tailored the case to fit within thei
legal theories.” A.M. Dep't of Human Servs. vy. Tapia, 1982-NMSC-033, 4 11, 97
N.M. 632, 642 P.2d 1091; accord State v. Am. Fed’n of State, Ctv., & Mun. Emps.,

2012-NMCA-114, 435, 291 P.3d.

Cas

si} = Qur review of New Mexico law reveals that no case has squarely addressed
Defendant’s argument that a motorist cannot violate Section 66-7-317(A) without
affecting other nearby traffic. See United States v. Vance, 893 F.3d 763, 770 (10th
Cir. 2018) (concluding that, after reviewing New Mexico case law, the defendant’s
assertions that “it would be unreasonable for any officer... to believe a lane change
that did not actually result in a safety risk to surrounding traffic amounted to a
violation of [Section] 66-7-317(A). ... are, at best, subject to significant debate’).
The language used in Section 66-7-317(A) is taken verbatim from Section | 1-309(a)
of the Uniform Vehicle Code, which a majority of states have adopted. Compare
§ 66-7-317(A), with Natl Comm. on Unif. Traffic Laws & Ordinances, Uniform

Vehicle Code § 11-309(a) (2000), http:/famtraffic.org/wp-content/uploads/20 1 3/

OLUVC2000.pdf. See also United States v. Bassals, 775 F. Supp. 2d 1293, 1299 n3

(D.N.M,. 2011) (stating that “every state in the Tenth Circuit and a majority of the
states in the United States have identical statutory provisions’). However, “[a]
review of other jurisdictions [confronting arguments similar to Defendant’s] reveals
more diversity in interpretation than one would expect for a uniform vehicle code
provision.” United States v. Jones, 501 PF. Supp. 2d 1284, 1296 (D. Kan. 2007)
(analyzing Kansas law identical to Section 66-7-317(A)); see State v. Regis, 32 Ad

1109, 1115 (N.S. 2011) (collecting cases addressing similar arguments and stating

that courts that have applied statutes identical to Section 66-7-317(A) “have reached

varying conclusions”). Given the varying ways our sister states have interpreted laws
with identical language, we are hesitant to interpret definitively Section 66-7-317(A)
on such inadequate briefing, which fails to cite to a single out-of-state case. In any
event, construction of the statute is unnecessary to resolution of Defendant's appeal
as the matter here ultimately turns on the reasonableness of Officer Sedillos’s
understanding of the law.

ai; “A police officer can initiate an investigatory traffic stop without infringing
the Fourth Amendment or Article U, Section 10 if the officer has a reasonable
suspicion that the law is being or has been broken.”! Martinez, 2018-NMSC-007,
€ 10 (internal quotation marks and citation omitted). “[A]ppellate courts will find
reasonable suspicion if the officer is aware of specific articulable facts, together with
rational inferences from those facts, that, when judged objectively, would lead a
reasonable person to believe criminal activity occurred or was occurring.” State v.

Dopstaf, 2015-NMCA-098, 4 8, 356 P.3d 559 (internal quotation marks and citation

' Besides generally citing Article Hl, Section 10, Defendant fails to develop
any argument that our analysis should differ under our State Constitution. “Thus, we
assume without deciding that both constitutions afford equal protection to
individuals against unreasonable seizures in this context, and we analyze the
constitutionality of the seizure under one uniform standard.” State v. Ochoa, 2004-
NMSC-023, 4 6, 135 N.M. 781, 93 P.3d 1286; see State v. Yazzie, 2016-NMSC-026,
€ 38, 376 P.3d 858 (“Although we have interpreted Article I, Section 10 to provide
broader protections against unreasonable search and seizure than the Fourth
Amendment in some contexts, we have never interpreted the New Mexico
Constitution to require more than a reasonable suspicion that the law is being or has
been broken to conduct a temporary, investigatory traffic stop[.]” (citation omitted)).

7A Bk We AG

”

omitted). “This inchides reasonable suspicion that a traffic law has been violated.’
State v. Sigueiros-Valenzuela, 2017-NMCA-074, © 11, 404 P.3d 782. A stop may be
premised on an officer’s mistake of law without negating reasonable suspicion so
long as the officer’s mistake was objectively reasonable. Dopslaf, 2015-NMCA-098,
"@ 10-11 (citing Heien v. North Carolina, 574 ULS. 54, __, 135 S. Ct. 330, 539
(2014)).
423 The question we confront then is whether it was objectively reasonable for
Officer Sedillos to believe Defendant’s lane departure, which did not in fact affect
the safety of others, was a violation of Section 66-7-317(A). To answer this question,
we look to the language of the statute and controlling case law. Section 66-7-317(A)
provides,

Whenever any roadway has been divided into two or more clearly

marked lanes for traffic... a vehicle shall be driven as nearly as

practicable entirely within a single lane and shall net be moved from

such lane until the driver has first ascertained that such movement can

be made with safetv[.|
(Emphasis added.) The plain language of the latter portion of Section 66-7-317(A)
prohibits drivers from moving out of their Jane of traffic unless they “first ascertain”
that it is safe to do so. There is nothing in the statutory language that specifies the
lane departure must in fact unsafely affect other traffic in order to constitute a

violation, as Defendant contends.

aa; Additionally, no published New Mexico appellate case has stated definitively
that danger to another motorist is an element of the statute. Prior to 2014, only two
published cases analyzed the language of Section 66-7-317(A). See Archibeque v.
Homrich, 1975-NMSC-066, €4 15-16, 88 N.M. 527, 543 P.2d 820; Aragon v.

Speelman, 1971-NMCA-161, 4 6-10, 83 N.M, 285, 491 P.2d 173. However, both

Archibeque and Aragon dealt with Section 66-7-317(A) in the civil context of

negligence per se. See Archibeque, 1975-NMSC-066, 4 14-16; dragon, 1971-
NMCA-1I61, ©] 6-10. Nor did either case conclusively hold that a motorist could not
violate Section 66-7-317(A) unless his lane departure actually endangered another
motorist. See Archibeque, 1975-NMSC-066, © 3, 16 (holding that the district court
properly refused to give a negligence per se instruction because “[t]he harm sought
to be prevented by [Section 66-7-317(A)] apparently is head-on collisions or
sideswiping the opposite moving traffic[, and i]t is doubtful that the statute could
have been intended by the [Llegislature to apply to a situation such as this[,]” where
the defendant crossed out of his lane and killed himself and his passenger in a single-
vehicle accident without any eyewitnesses); Aragon, 1971-NMCA-I61, %9 6-10
(holding that the plaintiff was not entitled to a negligence per se instruction based

on a failure to maintain lane violation because “there [was] no evidence that the

* Both Archibeque and Aragon dealt with the predecessor to 66-7-317(A),
which contained identical language. Compare NMSA 1953, § 64-18-16(A) (1941),
with § 66-7-317(A).

defendants’ vehicle moved from one lane to another at anywhere close to where the
accident occurred’’).

m4) In 2014, we decided State v. Salas, 2014-NMCA-043, 321 P.3d 965, the first
published case analyzing Section 66-7-317(A) in the criminal context. In that case,
two officers were following the defendant when they observed his vehicle cross out
of his lane one time and then make a sudden left turn from the far right lane without
using his turn signal. Salas, 2014-NMCA-043, 2. The officers cited the defendant
for violating Section 66-7-317(A) and arrested him for DWI. Salas, 2014-NMCA-
043, 44 2-3. After the district court denied the defendant’s motion to suppress, he
appealed to this Court, arguing that “the officers did not have reasonable suspicion
to stop him based on his driving conduct because no hazard or peril was created by
his actions.” /d. @ 8, 13 (internal quotation marks omitted}. In rejecting this
argument, we noted that, while there was no safety issue at the time, there were other
cars generally on the road and that the officers testified about their concern for the
safety of other motorists—including the officers themselves-——if they permitted the
defendant to continue to drive erratically. fd. 9 14-15. We also noted that “[a]
reasonable inference could be drawn that [the djefendant drove in a manner that
would indicate that he was not concerned about possible vehicular travel coming
from behind or northbound’-——ie., that the defendant failed to ascertain that his

movements could be made with safety. /d. 415. Given this, we concluded that “[tjhe

officers had legitimate and reasonable suspicion that lane and illegal turn-related
traffic offenses occurred.” fd.

ms} Additionally, the Salas defendant argued that the stop was based on a mistake
of law, which would have negated reasonable suspicion pre-Dopslaf. Salas, 2014-
NMCA-043, 9 16; see Dopslaf, 2015-NMCA-098, 4 11 (noting that our case law that
an officer cannot premise a stop on a reasonable mistake of law is no longer the
appropriate inquiry under the Fourth Amendment in light of Mefen). In rejecting the
defendant’s argument, the Sa/as Court noted that “any mistake could only have been
one of fact, not law... [because alny possible mistake was only as to whether [the
djefendant ‘first ascertained’ whether his drifting and then turning could be made
safely.” Salas, 2014-NMCA-043, 4 16 (quoting Section 66-7-317(A4)). As the State
argues, these observations in Sa/as suggest that an officer may develop reasonable
suspicion of a Section 66-7-317(A) violation ifa motorist moves out of a lane ina
manner indicating a failure to first ascertain the safety of the maneuver, whether or
not the movement happens to endanger other motorists. See Vance, 893 F.3d at 772-
73 (‘The language of [Section] 66-7-317(A) supports the conclusion that actual
disruption is not an element of the offense. The extant New Mexico case law does

not call that conclusion into question. Indeed, the decision in Salas strongly supports

that conclusion.’’}.

116} In support of his argument that Officer Sedillos made an unreasonable mistake
of law, Defendant cites to Siqgueiros-Valenzuela, where we held that “the plain
language of Section 66-7-317(A)—including the ‘as nearly as practicable’
qualification—recognizes and contemplates circumstances under which a driver
may momentarily leave his or her lane of travel without violating the statute.”
Siqueiros-Valenzuela, 2017-NMCA-074, 4 18. Sigueiros-Valenzuela, however, was
not decided until several months after Officer Sedillos pulled Defendant over and
therefore does not bear on the reasonableness of Officer Sedillos’s interpretation of
Section 66-7-317(A) in this case.

1073 Given the language of the statute and our precedential case law, we conclude
that it was objectively reasonable for Officer Sedillos to believe that Defendant
violated Section 66-7-317(A) despite the fact that his conduct did not immediately
endanger other motorists. Cf Depslaf, 2015-NMCA-098, 417 (stating that “[t]he

lack of definitive guidance [in a statute] as to what constitutes [the prohibited

’ Defendant also relies on State v. James, No. 33,020, mem. op. (N.M. Ct.
App. Jan. 28, 2014) (non-precedential), an unpublished memorandum opinion by
this Court construing Section 66-7-317. Because unpublished opinions have no
controlling precedential value, we decline to consider them in determining the
objective reasonableness of Officer Sedillos’s mistake of law. See Rule 12-405(B)
NMRA (rule governing non-precedential opinions); Hastland Fin. Servs. v.
Mendoza, 2002-NMCA-035, & 16, 132 N.M. 24, 43 P.3d 375 (‘An unpublished
opinion is written solely for the benefit of the parties to the action and has no
controlling precedential value.”).

too

—"

portions of a roadway], in combination with [the officer]’s observation[s] .. . is
sufficient to make the stop, assuming it was a mistake of law, a reasonable one”).
CONCLUSION

fis} For the foregoing reasons, we affirm the district court’s order denying
Defendant’s motion to suppress.

a9) Co IT ES SO ORDERED.

finns M. VANZL ladee

TCONCUR: y

JE ae ATTRE P. Judge

IVES, Judge (specially concurring).

0 Lagree with my esteemed colleagues that we should affirm. But I respectfully
decline to join the majority opinion because | do not believe that the mistake of law
doctrine applies to Defendant's appeal. | write separately to summarize my analysis
along with my concern that overbroad application of this Fourth Amendment
doctrine will unnecessarily subject people to infringements of their liberty and
perpetuate confusion about the meaning of our criminal and traffic statutes."

4; The limited scope of the mistake of law doctrine was the only point on which
all nine justices of the United States Supreme Court agreed in Heien. The Court

explained that mistakes of law must be objectively reasonable. Heien, 574 U.S. at

, 1358. Ct. at 539-40, Thus, “the [mistake of law] inquiry is not as forgiving as

the one employed in the [qualified immunity] context[,|? and “an officer can gain
no Fourth Amendment advantage through a sloppy study of the laws he is duty-
bound to enforce.” /d. at, 135 S. Ct. at 539-40. In a concurring opinion joined
by Justice Ginsburg, Justice Kagan elaborated on this limitation, explaining that
mistake of law only applies ifa statute is “genuinely ambiguous.” /d. at, 135.8.

Ct. at 541 (Kagan, J., concurring). Dissenting, Justice Sotomayor rejected the

doctrine entirely but concluded “that the set of reasonable mistakes of law ought to

* Defendant does not ask us to consider whether an officer’s mistake of law
can justify a search under Article IL, Section 10 of the New Mexico Constitution or,
if it can, whether the state constitutional analysis is identical to the federal analysis.

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be narrowly circumscribed if they are to be countenanced at all[.]” /d. at___, 135 S.
Ct. at 547 (Sotomayor, J., dissenting). She also expressed “fear [that] the Court’s
unwillingness to sketch a fuller view of what makes a mistake of law reasonable
only presage[d] the likely difficulty that courts [would] have [in] applying the
Court’s decision[.]” /d.

22 Maybe Justice Sotomayor’s fear has become reality in Defendant’s appeal.
My colleagues in the majority and J apparently disagree about how to interpret Heien
and Dopslaf, New Mexico’s only precedential opinion explicitly applying Heien. I
believe these precedents allow mistake of law to justify a governmental intrusion on
liberty only when the statute at issue “is genuinely ambiguous[.]” Heien, 574 U.S. at
___, 135 S. Ct. at 541 (Kagan, J., concurring)); Dopslaf, 2015-NMCA-098, 4 17
(quoting Justice Kagan, parenthetically, for the proposition that mistake of law only
applies to “genuinely ambiguous” statutes (internal quotation marks and citation
omitted)); see United States v. Stanbridge, 813 F.3d 1032, 1037 (7th Cir. 2016)
(“Heien does not support the proposition that a police officer acts in an objectively
reasonable manner by misinterpreting an unambiguous statute.”); United States v.
Alvarado-Zarza, 782 F.3d 246, 249-50 (5th Cir. 2015) (recognizing that mistake of
law does not apply to unambiguous statutes). The majority does not explicitly
endorse or reject the genuine ambiguity requirement. But its rejection could be

implicit. It seems to me that the majority relies on mistake of law even though

ina

‘fi

Section 66-7-317(A) is not genuinely ambiguous with respect to the narrow question
in Defendant's appeal: Does the pertinent part of the statute make unsafe impact on
others an element of this traffic violation?

23; The answer, as I see it, is no under the unambiguous language of the statute.
Defendant relies on the part of Section 66-7-317(A) that states that a vehicle “shall
not be moved from [the driver’s] lane until the driver has first ascertained that such
movement can be made with safety.”> | agree with the majority that “[t}here is
nothing in the statutory language that specifies the lane departure must in fact
unsafely affect other traffic in order to constitute a violation[.]” Majority Op. 4 12.
Had our Legislature intended to prohibit only lane departures that unsafely impact
others, it would have done so.° The Legislature chose instead to prohibit a driver
from failing to ascertain whether his or her departure could be made safely. A failure

to ascertain safety is not equivalent to an actual impact on the safety of others. It is

> The remainder of Section 66-7-317(A) requires that “fa] vehicle . . . be
driven as nearly as practicable entirely within a single lane[.]” Because neither party
relies on this part of the statute, | see no need to discuss it.

° In fact, the Legislature has chosen to impose similar a requirement elsewhere
in the Motor Vehicle Code. See NMSA 1978, 8 66-7-325(A) (1978) (prohibiting
motorists from “turn[ing| any vehicle without giving an appropriate signal... in the
event any other traffic may be affected by such movement”); see also State v.
Hubble, 2009-NMSC-014, 99 9-14, 146 N.M. 70, 206 P.3d 579 (interpreting Section
66-7-325(A) to require use of turn signals when there is a “reasonable possibility”
that other traffic might be affected).

possible for a driver to fail to ascertain that a movement can be safely made, even if
the driver’s lane departure does not end up actually having an unsafe impact, or any
impact at all, on other people.’ The majority also finds no support for Defendant’s
interpretation in New Mexico precedent. Again, | agree. But I believe that that
should be the end of our inquiry. Because neither the plain meaning of Section 66-
7-317(A) nor any binding precedent supports Defendant’s interpretation, | would
affirm based solely on a rejection of Defendant’s reading of the pertinent part of the
statute, rather than the reasonableness of the officer’s “mistake” of law."

424; Judicial development of mistake of law doctrine will meaningfully impact
Fourth Amendment freedoms. The doctrine weakens the protections of liberty
afforded by the probable cause and reasonable suspicion tests. It does so by allowing
detentions and arrests based on incorrect readings of statutes as long as those

readings are objectively reasonable. The consequences of expanding what is now a

"TI can imagine many examples. Some involve failures to ascertain that impact
other people but not unsafely. For example, a driver anticipates an incautious driver’s
lane change and gently applies the brakes to prevent the incautious driver’s
movement from having an unsafe impact. Other hypotheticals involve lane
departures that are unsafe only for the driver. A driver fails to look before moving
into a lane marked off by orange and white construction barrels. But, fortunately, the
construction site is inactive, and no other motorists are in the area, so the driver has
not unsafely impacted ofhers.

* Fortunately, in Defendant’s appeal, the mistake of law analysis and what I
view a8 a correct interpretation of the statute produce the same result, affirmance.
Of greater concern are cases in which courts use mistake of law to justify intrusions
based on incorrect interpretations of unambiguous statutes.

modest doctrine so that it encompasses unambiguous statutes could be profound.
Adherence to the genuine ambiguity requirement would ensure that the probable
cause and reasonable suspicion tests apply with full rigor, except in those rare cases
that cannot be resolved without “hard interpretative work[.]” Dopslaf, 2015-NMCA-
098, € 17 Gnternal quotation marks and citation omitted); see State v. Goodman,
2017-NMCA-OL0, €4 1, 7,389 P.3d 311 (holding that it was an unreasonable mistake
of law for an officer to interpret an ordinance that made it unlawful to “obstruct the
free use of [any] public way” as prohibiting a “five- to fifteen-second delay in
proceeding from a red light turned green”). Courts should not undermine the
probable cause and reasonable suspicion tests by turning to mistake of law whenever
they are called upon to interpret statutory language that, while perhaps no model of
clarity, is not truly ambiguous.

as; Another problematic consequence of overusing mistake of law doctrine
warrants brief discussion here. When an appellate court relies on mistake of law to
decide a case without saying what the pertinent statute means, the court perpetuates,
rather than resolves, the confusion that the court believes justifies resort to the

1358. Ct. at 544 (Sotomayor,

doctrine in the first place.” See Heien, 574 U.S. at

’ For instance, if the majority’s opinion were precedential, its holding would
be definitive, not as to the meaning of Section 66-7-317(A), but as to the
reasonableness of the officer's interpretation of that statute. And, based on the
majority's conclusion that that interpretation is reasonable, actually determining the

J., dissenting) (explaining that “permitting mistakes of law to justify seizures has the
perverse effect of preventing or delaying the clarification of the law}. Mistake of
law covers a statute like an opaque shroud, obscuring our view of the statute’s
meaning. What the Legislature intended is no longer our focus. What matters in a
mistake of law analysis is not whether a particular interpretation of a statute is might
or wrong, but whether that interpretation is objectively reasonable. Such analysis
does not help anyone understand the meaning of a statute. Cf Miller v. Fenton, 474
U.S. 104, 114 (1985) (recognizing “appellate court[s’] primary function as an
expositor of law’’).

a6} 1 think this is a significant problem. The police need to understand the
meanings of the statutes they are enforcing when they make potentially life-
changing-—-and sometimes deadly—decisions about whether to detain and arrest
people. Cf State v. Attaway, 1994-NMSC-OL1, | 10, 117 NM. 141, 870 P.2d 103
(recognizing that it is “the duty of appellate courts” in search and seizure cases “to
shape the parameters of police conduct by placing the constitutional requirement of
reasonableness in factual context’). Clarity is also critical for New Mexicans, who
need guidance about what our criminal and traffic statutes prohibit and what they

permit. And clarity is critical for judges, who need to know precisely what a statute

statute’s meaning would continue to be unnecessary in future appeals that raise the
same issue,

il
12

means, not which possible meanings are within some objectively reasonable range.
Fidelity to the genuine ambiguity requirement would minimize the confusion
mistake of law generates. If we respect this boundary around the doctrine, we will
decide more cases based on the actual meanings of statutes, providing much-needed
clarity to the police, the public, and the courts.””

an The majority opinion is, of course, not a precedential interpretation of Helen
or Dopsiaf. See Rule 12-405(A) (stating that memorandum opinions are not
precedent). For that we must wait. In the meantime, maybe the two opinions in
Defendant’s case will be of some use to lawyers who are left to wrangle over Fourth

Amendment mistake of law doctrine and judges who are tasked with applying it.

Lh
ZAGHARY A IVES, Judge

'T agree with the majority that Defendant’s appeal does not present a good
opportunity to interpret Section 66-7-317(A) as a whole. However, I think we can
and should resolve Defendant’s appeal by answering the narrow question of
interpretation his appeal does present, leaving other questions for future appeals.

June 25, 2019-State of New Mexico v. Jeremy Jake, No. A-1-CA-36931

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