State v. Branham

2004 NMCA 131, 102 P.3d 646, 136 N.M. 579
CourtNew Mexico Court of Appeals
DecidedSeptember 30, 2004
Docket24,309
StatusPublished
Cited by11 cases

This text of 2004 NMCA 131 (State v. Branham) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Branham, 2004 NMCA 131, 102 P.3d 646, 136 N.M. 579 (N.M. Ct. App. 2004).

Opinion

OPINION

WECHSLER, Chief Judge.

{1} The State of New Mexico appeals the district court’s grant of Defendant’s motion to suppress evidence because Defendant was driving on a road within the Mescalero Apache Indian Reservation and was stopped by a New Mexico state police officer. The State argues that the district court erred in concluding that there was no agreement between the Bureau of Indian Affairs (BIA) and/or the Mescalero Apache Tribe and the New Mexico state police authorizing the state police to patrol the Mescalero Reservation. In the alternative, the State argues that even if there was no agreement authorizing the state police to patrol the Mescalero Reservation, the state police officer who arrested Defendant conducted a citizen’s arrest. Because we conclude that the officer was without authority to enforce Mescalero tribal traffic ordinances and because the State did not preserve its remaining argument, we affirm.

Factual and Procedural History

{2} The facts are not in dispute. On August 31, 2002, New Mexico State Police Officer Gerard Silva was patrolling Highway 70 in the Mescalero Apache Indian Reservation. He observed Defendant driving 45 mph in a 35 mph zone on Mescalero 6, which is not within a state right-of-way and is not maintained by the state. Officer Silva turned on his emergency lights and pursued Defendant, who pulled over a short time later on Highway 244, a state road not located on the Mescalero Reservation. Officer Silva observed Defendant “staggering” and “swaying” as he emerged from his vehicle. The events following the stop resulted in Defendant being charged with DWI, driving with a suspended or revoked license, two counts of resisting, evading, or obstructing an officer, and one count of speeding.

{3} Defendant filed a motion to suppress evidence, arguing that Officer Silva’s initial traffic stop was unlawful because, as a New Mexico state police officer, Officer Silva did not have authority to enforce Mescalero Apache traffic ordinances. At the hearing on the motion, Officer Silva testified that he believed he had “full, unfettered authority” to conduct traffic stops within the reservation. Officer Silva also testified that he patrolled the Mescalero Reservation at the request of the Mescalero tribal police. Officer Silva stated that his captain had been asked by the tribe to have state police officers patrol the reservation in order to augment tribal police, who were shorthanded.

{4} The State also called Chief Morgan Troy Bolen as a witness. Chief Bolen testified that he was a BIA officer and additionally acted as Chief of Police for the Mescalero Tribe. Chief Bolen stated that after he became Chief of Police in 1999, he determined that he did not have a sufficient number of officers to patrol the reservation. He therefore entered into an informal verbal agreement with the New Mexico state police and the Otero County Sheriffs Office. According to Chief Bolen, the agreement was an “open invitation” to the state and county officers to patrol highways on the Mescalero Reservation. Under the agreement, when a state police officer makes a stop on the reservation, the officer must determine whether the individual is a Native American. If the person is Native American, the individual is cited to tribal court; if not, the individual is cited to state court. Chief Bolen also testified that the tribal council members and tribal courts were aware of, and did not object to, the informal verbal agreement.

{5} On cross-examination, Chief Bolen acknowledged that as a BIA officer he was an employee of the federal government, and, based on 25 U.S.C. §§ 2802, 2803 (1990), the BIA had authority to patrol the reservation. Chief Bolen also acknowledged that he was unaware of any authority authorizing the informal agreement he described. At the conclusion of his testimony, the State argued that Officer Silva had authority to stop Defendant on tribal land because (1) the State has jurisdiction over victimless crimes by non-Indians, (2) there was sufficient evidence of an informal agreement between the state police and the Mescalero Tribe conveying authority to Officer Silva, and (3) the agreement did not infringe on the authority of the tribe. Defendant argued that evidence should be suppressed because neither Congress nor the Mescalero Tribe expressly authorized state police officers to patrol highways on reservation land and because there was no legal authority for the informal agreement.

{6} The district court took the issue under advisement and asked the parties to brief the applicability of 25 U.S.C. § 2804 (2000) and whether it authorized the informal agreement upon which the State relies. Because the State indicated that there might possibly be a written form of the agreement, the district court allowed the State two weeks to produce the agreement in written form. The State never produced the agreement and instead argued that no agreement was necessary because Defendant was a non-Indian and New Mexico has exclusive jurisdiction over non-Indians on the Mescalero Apache Reservation. The district court found that there was no written agreement and that Officer Silva was not commissioned to enforce ordinances of the Mescalero Tribe. As a result, the district court concluded that Officer Silva “was without authority to stop” Defendant and granted Defendant’s motion to suppress.

Authority to Enforce Tribal Traffic Ordinances

{7} The State argues that the district court erred in concluding that there was no agreement between the BIA and/or the Mescalero Tribe and the New Mexico state police authorizing the state police to patrol the reservation. It contends that there was an actual verbal agreement made by Chief Bolen, which was accepted implicitly by the Mescalero Tribe. Because the State never produced a written agreement, the issue in this case is whether a verbal agreement between the BIA and/or the Mescalero tribal police and the New Mexico state police, and a lack of objection to such an agreement on the part of the Mescalero tribal leaders, is legally sufficient to confer upon the New Mexico state police the authority to enforce tribal traffic ordinances on tribal land.

{8} In reviewing the district court’s grant of Defendant’s motion to suppress, “[w]e review the district court’s ruling ... to determine whether the law was correctly applied to the facts, viewing the facts in the light most favorable to the prevailing party.” State v. Cline, 1998-NMCA-154, ¶6, 126 N.M. 77, 966 P.2d 785. We review the legal issue of whether the district court correctly determined that a verbal agreement is insufficient to confer authority upon the New Mexico state police under a de novo standard of review. See State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442 (observing that application of law to facts is subject to de novo review).

{9} The State does not cite any authority generally giving the New Mexico state police jurisdiction or authority to enforce tribal laws on tribal lands. However, § 2804(a) authorizes the BIA to enter into agreements with state law enforcement personnel for the purpose of aiding in enforcement of federal or tribal law within a reservation.

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Cite This Page — Counsel Stack

Bluebook (online)
2004 NMCA 131, 102 P.3d 646, 136 N.M. 579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-branham-nmctapp-2004.