1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. No. 30,149 10 PAULINE HENRY, 11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Robert M. Schwartz, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM
16 for Appellee
17 Lisa A. Torraco 18 Albuquerque, NM
19 for Appellant
20 MEMORANDUM OPINION 21 SUTIN, Judge.
1 Defendant appeals from the district court’s affirmance of her conviction for 2 driving while intoxicated (DWI) in violation of NMSA 1978, Section 66-8-102(A) 3 (2005) (amended 2007 and 2008), following a bench trial in the metropolitan court. 4 On appeal to this Court, Defendant contends that (1) there was not reasonable 5 suspicion to support a DWI investigation [DS 5], and (2) the trial court erred when it 6 applied the police-team exception to support her arrest [DS 6; RP 94]. This Court 7 issued a calendar notice proposing to affirm. Defendant has filed a memorandum in 8 opposition citing State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and State v. 9 Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985). This Court has given due 10 consideration to Defendant’s arguments. Unpersuaded, we affirm. 11 Reasonable Suspicion 12 In this Court’s proposed disposition we noted that Defendant’s arrest arose after 13 Officer Borunda had responded to a domestic disturbance involving Defendant’s 14 daughter and son-in-law. [DS 3-4; RP 37, 69-70] Defendant’s daughter had called 15 Defendant to pick up Defendant’s grandchildren to avoid them being taken in by child 16 protective services. [DS 4; RP 37] Defendant drove to the location of the domestic 17 disturbance where Officer Borunda was waiting for back-up to arrive before 18 approaching the residence. [RP 41-43] Officer Borunda called Defendant over to him 19 because it is against Albuquerque Police Department policy to allow a civilian to enter
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1 the scene of a possible domestic disturbance. [RP 42] Officer Borunda noticed a 2 strong odor of alcohol when Defendant approached him. [Id.] Officer Borunda 3 further observed that Defendant appeared tired and had slurred speech, and Defendant 4 admitted to drinking. [Id.] Officer Borunda contacted a DWI officer to continue the 5 DWI investigation. [RP 41-42] 6 In this Court’s calendar notice, we proposed to conclude that Officer Borunda’s 7 observations of slurred speech and a smell of alcohol emitting from Defendant’s facial 8 area, in addition to Defendant’s admission to drinking, “would lead a reasonable 9 person to believe criminal activity occurred or was occurring,” where Officer Borunda 10 had also observed Defendant driving. State v. Taylor, 1999-NMCA-022, ¶ 7, 126 11 N.M. 569, 973 P.2d 246 (internal quotation marks and citation omitted). Defendant 12 continues to argue in her memorandum in opposition that Officer Borunda did not 13 have reasonable suspicion to call another officer to continue the DWI investigation, 14 and thus the trial court erred in denying her motion to suppress. [MIO 3] 15 Specifically, Defendant relies on the fact that Officer Borunda did not “feel he had 16 reasonable suspicion to detain [Defendant]” to argue in support of reversal. [Id.] In 17 our calendar notice, we proposed to conclude that Officer Borunda’s subjective belief 18 as to whether reasonable suspicion existed was irrelevant. See Taylor, 1999-NMCA- 19 022, ¶ 7 (“An investigatory stop is based on reasonable suspicion if the officer is
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1 aware of specific articulable facts, together with rational inferences from those facts, 2 that, when judged objectively, would lead a reasonable person to believe criminal 3 activity occurred or was occurring.” (internal quotation marks and citation omitted)). 4 To the extent Defendant relies on City of Roswell v. Hudson, 2007-NMCA-034, 141 5 N.M. 261, 154 P.3d 76, Hudson does not support Defendant’s argument. [Id.] To the 6 contrary, Hudson supports this Court’s proposed conclusion that reasonable suspicion 7 is evaluated on an objective basis. Id. ¶ 15. Moreover, to the extent Defendant relies 8 on State v. Bedolla, 111 N.M. 448, 806 P.2d 588 (Ct. App. 1991), and State v. Flores, 9 1996-NMCA-059, 122 N.M. 84, 920 P.2d 1038, Defendant provides no explanation 10 as to why these cases require reversal. See State v. Ibarra, 116 N.M. 486, 489, 864 11 P.2d 302, 305 (Ct. App. 1993) (“A party opposing summary disposition is required 12 to come forward and specifically point out errors in fact and/or law.”). Further, after 13 review of Bedolla and Flores this Court concludes that Defendant’s reliance on these 14 cases is unavailing. 15 Police-Team Exception 16 Defendant contends that the trial court erred in applying the police-team 17 exception to the misdemeanor-arrest rule. In this Court’s calendar notice, we pointed 18 out that Defendant appeared to be arguing that because there was no exigency or 19 cooperative police effort to support use of the police-team exception, there was no
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1 probable cause for Defendant’s arrest. Specifically, we noted that Defendant appeared 2 to be arguing that because the officer conducting the DWI investigation did not 3 observe Defendant driving her vehicle, Defendant’s arrest was illegal. 4 In response to Defendant’s argument, this Court relied on State v. Lyon, 103 5 N.M. 305, 308, 706 P.2d 516, 519 (Ct. App. 1985), to propose to conclude that the 6 police-team exception was properly applied in Defendant’s case. We noted that in 7 Lyon, this Court considered whether the police-team exception should apply to allow 8 a misdemeanor arrest for DWI where the arresting officer did not observe the 9 defendant driving. Id. at 307, 706 P.2d at 518. There, the officer had observed the 10 defendant driving with an open container, stopped the defendant, and cited him. Id. 11 Because the officer “could not transport [the] defendant in the canine unit vehicle and 12 expose [the] defendant to danger from the dog, and also because he needed to remain 13 free to service the canine unit,” he radioed for assistance. Id. The officer conveyed 14 information relating to his interaction with the defendant to the officer who responded 15 from the DWI unit, the responding officer conducted field sobriety tests, and the 16 responding officer arrested the defendant. Id. 17 In response, Defendant cites to this Court’s recent opinion in State v. Mitchell, 18 2010-NMCA-059, __ N.M. __, __ P.3d __, and our earlier opinion in State v. Warren, 19 103 N.M. 472, 709 P.2d 194 (Ct. App. 1985), to argue that where one officer passes
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1 the investigation onto another simply because he did not want to finish it there is not 2 collective police work. [MIO 3-4] These cases do not support Defendant’s argument. 3 In Mitchell, this Court addressed a similar argument. 2010-NMCA-059, ¶ 8. There, 4 we noted that the officer had passed the DWI investigation onto another officer 5 because his primary duty was to patrol the streets and not to perform DWI 6 investigations. Id. Thus, we held that the officer’s “observations could properly be 7 passed onto [a second officer] to investigate the possibility of DWI.” Id. We further 8 concluded that the police-team concept was appropriately applied under those 9 circumstances, and there was no basis for suppression of the evidence obtained from 10 the DWI investigation. Id. 11 We agree with Defendant that Mitchell applies. We, however, conclude that, 12 like the officer in Mitchell, Officer Borunda’s primary purpose at the scene was to 13 investigate a domestic disturbance, thus, his observation could be properly transferred 14 to the DWI investigating officer. We therefore conclude that the police-team 15 exception was properly applied in Defendant’s case. Accordingly, we affirm. 16 For the reasons stated in this opinion and in this Court’s notice of proposed 17 disposition, we affirm Defendant’s conviction. 18 IT IS SO ORDERED.
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1 ______________________________ 2 JONATHAN B. SUTIN, Judge
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1 WE CONCUR:
2 _________________________________ 3 MICHAEL D. BUSTAMANTE, Judge
4 _________________________________ 5 CELIA FOY CASTILLO, Judge