1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: February 14, 2019
4 No. A-1-CA-35497
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellant,
7 v.
8 SOMER D. WRIGHT,
9 Defendant-Appellee.
10 APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY 11 Matthew G. Reynolds, District Judge
12 Hector H. Balderas, Attorney General 13 Santa Fe, NM 14 Charles J. Gutierrez, Assistant Attorney General 15 Albuquerque, NM
16 for Appellant
17 Bennett J. Baur, Chief Public Defender 18 Mary Barket, Assistant Appellate Defender 19 Santa Fe, NM
20 for Appellee 1 OPINION
2 KIEHNE, Judge Pro Tempore.
3 {1} A reserve deputy sheriff’s officer followed Defendant Somer Wright home
4 after seeing her truck driving erratically on the highway. When Defendant arrived
5 home, her truck struck a parked vehicle in the driveway, and then backed up,
6 almost hitting the reserve deputy’s vehicle. The reserve deputy approached
7 Defendant’s truck and, after she admitted to having drunk four beers, advised her
8 to “hang tight.” Defendant sat in her truck until a regular commissioned deputy
9 sheriff arrived four to five minutes later to continue the investigation. Defendant
10 was ultimately charged with driving while intoxicated (DWI).
11 {2} It is undisputed that the reserve deputy lacked statutory authority under the
12 Motor Vehicle Code to require Defendant to remain in her truck until the
13 commissioned deputy arrived on the scene. It is also undisputed that the reserve
14 deputy’s action constituted an arrest under New Mexico law, albeit one that did not
15 violate the Fourth Amendment. The question we must decide is whether the arrest
16 was constitutionally unreasonable under Article II, Section 10 of the New Mexico
17 Constitution. The district court found that the reserve deputy’s action was
18 unconstitutional, and suppressed all evidence obtained by law enforcement after
19 the reserve deputy directed Defendant to “hang tight.” The State now appeals. 1 {3} We conclude that the arrest was constitutionally reasonable, because the
2 State’s strong interest in apprehending and prosecuting drunk drivers outweighed
3 the minor intrusion on Defendant’s privacy rights. We therefore reverse the district
4 court’s suppression order.
5 BACKGROUND
6 {4} On the evening of March 15, 2014, Torrance County Reserve Deputy Roy
7 Thompson was on duty in a marked patrol car belonging to the Torrance County
8 Sheriff’s Department. He wore a uniform and badge that identified him as a deputy
9 and were largely indistinguishable from those of a full-time regular deputy.
10 Thompson was traveling down Highway 41 when he was approached from behind
11 by two vehicles. Believing they were exceeding the 55 mile-per-hour posted speed
12 limit, Thompson pulled off the highway to let those vehicles pass. The headlights
13 on one of the vehicles kept moving “back and forth,” and as Thompson pulled
14 over, one of the vehicles, a white Dodge truck driven by Defendant, crossed the
15 outer white line and nearly struck Thompson’s vehicle. Thompson’s radar showed
16 that Defendant’s truck was traveling at sixty-eight miles per hour, and Thompson
17 sped up to around eighty miles per hour and passed another vehicle to catch up
18 with Defendant. While traveling behind Defendant, Thompson used his personal
19 cell phone to contact Deputy Ron Fulfer, the only full-time deputy on duty in
20 Torrance County that evening, who instructed Thompson to follow the truck and
2 1 initiate a stop only if necessary to do so for safety reasons. Thompson also ran the
2 truck’s license plate number and obtained Defendant’s address. Thompson
3 followed the truck to a private residence matching the vehicle’s registered address.
4 When Defendant pulled the truck into her driveway, she struck another vehicle that
5 was already parked there. Defendant backed up after hitting the parked car, and
6 according to Thompson, nearly struck his patrol car 1 as he pulled up behind
7 Defendant’s truck and parked on the highway. Though he never activated his
8 emergency lights, Thompson did shine the patrol car’s spotlight on the now-
9 stationary truck before approaching Defendant on foot. Defendant remained in the
10 driver’s seat of the truck, with the engine running and the lights on.
11 {5} Thompson identified himself as a reserve deputy, and pointed out to
12 Defendant that she had hit the vehicle in the driveway and nearly hit his patrol car,
13 to which Defendant responded by stating, in substance, that the car in her driveway
14 was hers, and she could hit it if she wanted to. At that point, Thompson smelled the
15 odor of alcohol and asked if Defendant had been drinking. She acknowledged that
16 she had consumed “four green beers,” apparently in celebration of the then
17 upcoming St. Patrick’s Day holiday. Thompson instructed Defendant to “hang
18 tight” until Deputy Fulfer arrived. Thompson then returned to and sat in his patrol
1 Thompson testified that he did not believe Defendant was attempting or intended to flee.
3 1 car. Defendant followed Thompson’s direction by remaining in her vehicle, and
2 approximately four to five minutes later, Deputy Fulfer arrived, conducted a DWI
3 investigation, and arrested Defendant for DWI. Defendant was ultimately charged
4 with aggravated DWI, contrary to NMSA 1978, § 66-8-102(A), (D)(1) (2010,
5 amended 2016), which carries a penalty of up to ninety days’ imprisonment and a
6 fine of not more than $500. See § 66-8-102(E).
7 {6} Defendant moved to suppress the evidence obtained after Deputy Fulfer
8 arrived on the scene, arguing that it was obtained as a result of an unlawful seizure
9 in violation of Article II, Section 10 of the New Mexico Constitution. The district
10 court granted Defendant’s suppression motion following a hearing, concluding that
11 (1) Thompson’s “temporary detention” of Defendant constituted an “arrest” within
12 the meaning of NMSA 1978, § 66-8-124(A) (2007) (providing that “[n]o person
13 shall be arrested for violating the Motor Vehicle Code . . . or other law relating to
14 motor vehicles punishable as a misdemeanor except by a commissioned, salaried
15 peace officer who, at the time of arrest, is wearing a uniform clearly indicating the
16 peace officer’s official status”); (2) Defendant’s arrest was not authorized by
17 Section 66-8-124(A) because Thompson was not a commissioned, salaried deputy;
18 and (3) Defendant’s arrest, while not violating the Fourth Amendment, did violate
19 Article II, Section 10 of the New Mexico Constitution. The State now appeals.
4 1 DISCUSSION
2 {7} “Appellate review of a motion to suppress presents a mixed question of law
3 and fact.” State v. Paananen, 2015-NMSC-031, ¶ 10, 357 P.3d 958 (internal
4 quotation marks and citation omitted). “We review the [district] court’s ruling on a
5 defendant’s motion to suppress to determine whether the law was correctly applied
6 to the facts, viewing them in the manner most favorable to the prevailing party.”
7 State v. Ortiz, 2017-NMCA-062, ¶ 9, 400 P.3d 312 (alteration, internal quotation
8 marks, and citation omitted), cert. denied, 2017-NMCERT-___ (No. S-1-SC-
9 36492, June 22, 2017). “While we afford de novo review of the [district] court’s
10 legal conclusions, we will not disturb the [district] court’s factual findings if they
11 are supported by substantial evidence.” Id. (internal quotation marks and citation
12 omitted).
13 {8} We begin our analysis by setting out several undisputed legal and
14 constitutional precepts that would normally serve as building blocks of an analysis
15 under Article II, Section 10. First, the State concedes that Thompson’s actions in
16 temporarily detaining Defendant amounted to an “arrest” as that term is used in
17 Section 66-8-124(A). See State v. Slayton, 2009-NMSC-054, ¶ 20, 147 N.M. 340,
18 223 P.3d 337 (concluding that “temporary detentions are covered under the term
19 ‘arrest’ as used in Chapter 66 as well as custodial arrests”); State v. Bricker, 2006-
20 NMCA-052, ¶ 9, 139 N.M. 513, 134 P.3d 800 (same). The State also agrees, as it
5 1 must, that Thompson was not a commissioned, salaried peace officer under Section
2 66-8-124(A) and therefore acted without statutory authority when he temporarily
3 detained Defendant. Neither party disputes that Thompson’s temporary detention
4 of Defendant, although statutorily unauthorized, did not violate the Fourth
5 Amendment. See Slayton, 2009-NMSC-054, ¶¶ 30-33 (holding that the defendant’s
6 statutorily unauthorized detention by a police service aide did not violate the
7 Fourth Amendment). Finally, there is no dispute that Thompson was acting in his
8 capacity as a reserve deputy on behalf of Torrance County when he began
9 following Defendant’s vehicle and that his temporary detention of Defendant
10 therefore amounted to a seizure by a state actor. See id. ¶¶ 21-27. Given the
11 parties’ consensus on these matters, the sole issue before us is whether
12 Thompson’s actions violated Article II, Section 10 of the New Mexico
13 Constitution, which guarantees the right to be free “from unreasonable searches
14 and seizures.”
15 {9} Our Supreme Court has often interpreted Article II, Section 10 to provide
16 significantly greater protections than those afforded under the Fourth Amendment.
17 See, e.g., State v. Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 2, 5, 130 N.M. 386, 25
18 P.3d 225 (holding that extended detention of a defendant at border checkpoint was
19 unlawful under Article II, Section 10); State v. Gomez, 1997-NMSC-006, ¶¶ 39,
20 44, 122 N.M. 777, 932 P.2d 1 (rejecting federal automobile exception to warrant
6 1 requirement in favor of greater protections under Article II, Section 10); State v.
2 Attaway, 1994-NMSC-011, ¶¶ 22, 25, 117 N.M. 141, 870 P.2d 103 (holding that
3 Article II, Section 10 requires officer executing search warrant to “knock and
4 announce”); Campos v. State, 1994-NMSC-012, ¶¶ 10, 14, 117 N.M. 155, 870
5 P.2d 117 (requiring warrantless arrest to be based on both probable cause and
6 sufficient exigent circumstances). New Mexico courts have specifically applied
7 this greater constitutional protection to motorists. See Cardenas-Alvarez, 2001-
8 NMSC-017, ¶ 15 (stating that “[t]he extra layer of protection from unreasonable
9 searches and seizures involving automobiles is a distinct characteristic of New
10 Mexico constitutional law[,]” and observing that the New Mexico Supreme Court
11 has “dismissed the notion that an individual lowers his expectation of privacy
12 when he enters an automobile[.]”).
13 {10} When conducting an analysis under Article II, Section 10, we initially
14 consider “whether the right being asserted is protected under the federal
15 Constitution.” Cardenas-Alvarez, 2001-NMSC-017, ¶ 6. We agree with the district
16 court and the parties that Thompson’s statutorily unauthorized, temporary
17 detention of Defendant did not violate the Fourth Amendment. Our Supreme Court
18 previously addressed the Fourth Amendment’s application to a seizure made by a
19 non-commissioned police service aide in violation of Section 66-8-124(A), the
20 same statute at issue here, in Slayton, 2009-NMSC-054, and concluded that the
7 1 service aide’s lack of statutory authority to arrest the defendant did not by itself
2 amount to a Fourth Amendment violation. Id. ¶ 33 (stating that “the Fourth
3 Amendment is not concerned with a state actor’s violation of a statute governing
4 who may seize a person suspected of committing a crime[.]”). The Slayton Court,
5 however, did not have occasion to consider whether the New Mexico Constitution
6 would have prohibited the seizure. This case requires us to consider the question
7 that Slayton left unanswered—does the seizure of a defendant by a government
8 actor lacking statutory authority to act violate Article II, Section 10, thus requiring
9 suppression of the evidence gathered as a result of the seizure?
10 {11} When considering an Article II, Section 10 claim, “New Mexico courts have
11 consistently rejected federal bright-line rules in favor of an examination into the
12 reasonableness of officers’ actions under the circumstances of each case.” State v.
13 Ochoa, 2009-NMCA-002, ¶ 24, 146 N.M. 32, 206 P.3d 143; see State v. Granville,
14 2006-NMCA-098, ¶ 18, 140 N.M. 345, 142 P.3d 933 (stating that “[i]n all cases
15 that invoke Article II, Section 10, the ultimate question is reasonableness”). “The
16 Constitution only proscribes . . . those searches and seizures which are
17 unreasonable.” State v. Werner, 1994-NMSC-025, ¶ 11, 117 N.M. 315, 871 P.2d
18 971. Evidence seized in violation of Article II, Section 10 must be suppressed. See
19 State v. Gutierrez, 1993-NMSC-062, ¶ 45, 116 N.M. 431, 863 P.2d 1052 (“[T]he
20 New Mexico constitutional prohibition against unreasonable searches and seizures
8 1 requires that we deny the state the use of evidence obtained in violation of Article
2 II, Section 10 in a criminal proceeding.”). Analysis of constitutional
3 reasonableness in this case is guided largely by this Court’s previous decisions in
4 State v. Rodarte, 2005-NMCA-141, 138 N.M. 668, 125 P.3d 647, and State v.
5 Bricker, 2006-NMCA-052. In Rodarte, we addressed whether the New Mexico
6 Constitution allows “an officer [to] arrest an individual solely on the basis of
7 probable cause that a minor criminal offense for which jail time is not authorized
8 has been committed.” 2005-NMCA-141, ¶ 1. In that case, a police officer
9 subjected the defendant to a full custodial arrest for being a minor in possession of
10 alcohol, a misdemeanor offense which carried with it no jail time. Id. ¶¶ 3-4. Four
11 years earlier, in Atwater v. City of Lago Vista, 532 U.S. 318, 323 (2001), a narrow
12 majority of the Supreme Court of the United States adopted a bright-line rule that
13 an arrest based solely on probable cause for a minor offense for which jail time
14 was not authorized (in that case, a seatbelt violation) was reasonable under the
15 Fourth Amendment. In a forceful dissent, Justice O’Connor took the view that
16 reasonableness under the Fourth Amendment should be determined by balancing
17 “the degree to which [the arrest] intrudes upon an individual’s privacy” and “the
18 degree to which [the arrest] is needed for the promotion of legitimate governmental
19 interests.” Id. at 361 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).
20 Justice O’Connor stated that “the penalty that may attach to any particular offense
9 1 seems to provide the clearest and most consistent indication of the [s]tate’s interest
2 in arresting individuals suspected of committing that offense.” Id. at 365 (quoting
3 Welsh v. Wisconsin, 466 U.S. 740, 754 n.14 (1984)). Thus, under this calculus,
4 probable cause alone does not make an arrest reasonable where an offense is not
5 punishable with jail time; rather, there must be “ ‘specific and articulable facts
6 which, taken together with rational inferences from those facts, reasonably warrant
7 [the additional] intrusion’ of a full custodial arrest.” Id. at 366 (alteration in
8 original) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). In Rodarte, this Court
9 adopted Justice O’Connor’s approach as being more consistent with New Mexico’s
10 jurisprudence under Article II, Section 10, which has stressed the importance of
11 case-by-case determinations of reasonableness and avoided bright-line rules. 2005-
12 NMCA-141, ¶¶ 13-16.
13 {12} The next year, in Bricker, 2006-NMCA-052, we addressed the constitutional
14 reasonableness of a full custodial arrest of a defendant suspected of driving with a
15 suspended license, a misdemeanor punishable by a jail term of up to 364 days
16 under NMSA 1978, Section 66-5-39(A) (2013). Because the governing Motor
17 Vehicle Code provisions, Sections 66-8-122(G) and 66-8-123(A), required the
18 issuance of a citation and the release of an offending motorist in lieu of a custodial
19 arrest unless the underlying license suspension resulted from the violation of
20 certain DWI-related laws, and the state presented no evidence about the reason for
10 1 the defendant’s license suspension, this Court therefore concluded that the
2 defendant’s custodial arrest violated the statute and was unlawful. Id. ¶ 14. To
3 determine whether evidence obtained as a result of the statutorily unauthorized
4 arrest should be suppressed, we considered whether the arrest violated Article II,
5 Section 10 and applied the balancing-of-interests test that we adopted in Rodarte.
6 Bricker, 2006-NMCA-052, ¶¶ 14, 23, 26. This Court pointed to the statute’s
7 requirement that offenders be cited and released as evincing the Legislature’s
8 intent “to protect individual liberty over perceived governmental need,” an intent
9 which we characterized as having “constitutional bearing.” Id. ¶ 29. This Court
10 also noted that the possibility of jail time faced by one convicted of driving with a
11 suspended license did not alter the analysis, explaining that “[j]ailability cannot
12 justify overlooking an unlawful custodial arrest and permitting searches based on
13 the unlawful arrest” because the “intrusion upon one’s liberty is no less significant
14 in cases in which the offense is jailable than in cases in which the offense is non-
15 jailable.” Id. ¶ 27. In all, we concluded in Bricker that the defendant’s custodial
16 arrest, made without statutory authority, failed the test of constitutional
17 reasonableness under Article II, Section 10. Bricker, 2006-NMCA-052, ¶ 20.
18 {13} In assessing the constitutional reasonableness of Thompson’s detention of
19 Defendant in this case, we must apply the balancing-of-interests test that we
20 employed in Rodarte and Bricker, which, as indicated, requires us to evaluate, “on
11 1 the one hand, the degree to which [the seizure] intrude[d] upon [Defendant]’s
2 privacy and, on the other, the degree to which [the seizure was] needed for the
3 promotion of legitimate governmental interests.” Atwater, 532 U.S. at 361
4 (O’Connor, J., dissenting) (internal quotation marks and citation omitted).
5 Applying this balancing test to the facts of this case, we hold that Thompson’s
6 temporary detention of Defendant was constitutionally reasonable. Under the
7 totality of the circumstances, the intrusion on Defendant’s privacy was minimal.
8 After all, despite observing Defendant’s speeding and erratic driving on a public
9 highway, Thompson did not attempt to pull her over or activate the emergency
10 lights on his patrol car. Instead, he followed Defendant to her home and, once
11 there, shone a spotlight on her truck and approached it by foot. Upon making
12 contact with Defendant, he spoke to her briefly, instructed her to remain where she
13 was, and returned to his patrol car, where he waited for Deputy Fulfer’s arrival.
14 Defendant remained in the driver’s seat of her truck, with the engine running, for
15 about four or five minutes until Deputy Fulfer arrived to take charge of the
16 investigation. See generally State v. Nance, 2011-NMCA-048, ¶ 26, 149 N.M. 644,
17 253 P.3d 934 (stating that police intrusion into the defendant’s privacy was “de
18 minimis” and a “slight intrusion” where they asked him to stand outside his home
19 for fifteen minutes during a DWI investigation). Thompson did not ask to see
20 Defendant’s driver’s license, registration, or insurance information; he did not
12 1 instruct Defendant to step out of her truck or wait in his patrol car; he did not
2 brandish a weapon; and he did not place Defendant in handcuffs or otherwise
3 physically restrain her freedom of movement. He simply told Defendant to “hang
4 tight” until Deputy Fulfer arrived.
5 {14} By contrast, under the circumstances of this case, the State’s need to
6 temporarily detain Defendant far outweighed whatever brief, minimal privacy
7 intrusion that Defendant may have experienced. It is well recognized that the
8 State’s interest in removing drunk drivers from its roadways is compelling. See
9 State v. Johnson, 2001-NMSC-001, ¶ 17, 130 N.M. 6, 15 P.3d 1233 (noting that
10 “the public interest and potential harm posed by intoxicated drivers is so
11 compelling that the offense of DWI is a strict liability crime”) (citation omitted);
12 Nance, 2011-NMCA-048, ¶ 26 (concluding that the state’s interests outweighed
13 the defendant’s in part because of a “compelling public interest in eradicating DWI
14 occurrences and their potentially deadly consequences” (alteration, internal
15 quotation marks, and citation omitted)). DWI is a more serious offense than being
16 a minor in possession of alcohol, the offense involved in Rodarte, or driving with a
17 suspended license, the offense at issue in Bricker. It also bears emphasis that by the
18 time Thompson detained Defendant, he had seen her drive over the speed limit,
19 weave back and forth on the highway, collide with a parked vehicle and nearly hit
20 his patrol car, and had heard her admit to consuming four beers. See City of Santa
13 1 Fe v. Martinez, 2010-NMSC-033, ¶ 16, 148 N.M. 708, 242 P.3d 275 (“[T]he
2 warrantless arrest of one suspected of committing DWI is valid when supported by
3 both probable cause and exigent circumstances.”). Exigent circumstances also
4 weighed in favor of a temporary detention, because otherwise Defendant might
5 have entered her house and refused to come back outside once Deputy Fulfer
6 arrived, thereby delaying and complicating the DWI investigation by requiring
7 Deputy Fulfer to seek an arrest warrant in order to enter Defendant’s home. See
8 Nance, 2011-NMCA-048, ¶ 23 (rejecting conclusion that dissipation of alcohol
9 alone is exigency enough to justify warrantless entry into the home). Alternatively,
10 Defendant might have tried to drive away, a circumstance which could have posed
11 a serious danger to the public.
12 {15} Defendant offers several reasons to uphold the district court’s suppression
13 order, but none of them are persuasive. First, she argues that near-controlling
14 weight should be given to Thompson’s violation of Section 66-8-124(A), which, as
15 she puts it, limits the authority to arrest “to those possessing appropriate law
16 enforcement authority, training, and experience thereby protecting the same
17 privacy and liberty interests protected by Article II, Section 10.” While in no way
18 condoning Thompson’s violation of the statute, we decline Defendant’s invitation
19 to treat that violation as dispositive of our constitutional analysis, an approach
20 which would be contrary to our Supreme Court’s aversion to bright-line rules when
14 1 applying Article II, Section 10, and its direction that courts employ a case-by-case
2 approach in determining reasonableness. Moreover, unlike the statute at issue in
3 Bricker, which embodied the Legislature’s intent that no one should be subjected
4 to a full custodial arrest for driving on a suspended license (provided that the
5 suspension was unrelated to a violation of the DWI laws), Section 66-8-124(A),
6 the statute at issue here, does not reflect a similar legislative policy. Rather,
7 Section 66-8-124(A) merely limits the class of persons who may subject a motorist
8 to a temporary detention or arrest. It says nothing about, and does not detract from,
9 the seriousness of DWI or the State’s compelling interest in apprehending drunk
10 drivers.
11 {16} Second, pointing to Thompson’s relative lack of training and experience,
12 Defendant contends that upholding the temporary detention here would
13 “encourage[ ] abuse and arbitrary governmental intrusion.” Significantly, however,
14 Defendant does not argue, much less show, that Thompson’s relative lack of
15 experience and training harmed her in any way, and therefore suppression is not
16 justified on the basis of this undeveloped “lack of training” argument. See State v.
17 Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (reiterating that appellate courts do
18 not review unclear or undeveloped arguments). This is not to suggest that we are
19 unsympathetic to Defendant’s stated concerns, and we take this opportunity to
20 warn law enforcement agencies that this opinion does not give them carte blanche
15 1 to allow reserve deputies to detain motorists. Under New Mexico’s case-by-case
2 approach in reviewing claimed violations of Article II, Section 10, it is easy to
3 envision a case involving a greater intrusion on a motorist’s privacy than occurred
4 here, or a less compelling state interest than existed here, either of which might be
5 sufficient to justify suppression. A county sheriff’s conduct in encouraging or
6 turning a blind eye to a reserve deputy’s violation of Section 66-8-124(A)
7 jeopardizes the legitimate enforcement of the Motor Vehicle Code.
8 {17} Third, Defendant argues that Thompson’s actions in speeding to catch up
9 with her truck, in closely following her, and in directing her to remain in her
10 vehicle were “entirely unnecessary,” concluding that the resulting detention did not
11 promote any legitimate governmental interests. Defendant also argues that any
12 police concern that she might try to enter her home, thus making the investigation
13 more difficult, was speculative; that requiring her to remain in her truck achieved
14 only a “minor convenience” for the police; and that the State’s interests could have
15 been satisfied by a simple police request that Defendant consent to stay outside
16 until Deputy Fulfer arrived. We disagree with these arguments. As Thompson
17 explained, he sped up to follow Defendant to help ensure that she would not
18 endanger other motorists, including those who might be traveling in the opposite
19 direction (fortuitously, there were none). And allowing Defendant to enter her
20 home in these circumstances would likely have impeded the police investigation.
16 1 {18} Finally, Defendant argues that Thompson had violated Section 66-8-124(A)
2 on previous occasions, demonstrating that his present “violation of the statute was
3 not accidental or unknowing[,]” and therefore should not be considered de
4 minimis. While defense counsel questioned Thompson about other cases in which
5 he had been involved, this inquiry did not elicit any admissions, and defense
6 counsel did not introduce any evidence into the record about the facts and
7 circumstances of any other cases. We therefore do not consider this argument. See
8 Proper v. Mowry, 1977-NMCA-080, ¶ 37, 90 N.M. 710, 568 P.2d 236 (“Remarks,
9 arguments and statements of lawyers are not evidence.” (internal quotation marks
10 and citation omitted)); State v. Romero, 1975-NMCA-017, ¶ 2, 87 N.M. 279, 532
11 P.2d 208 (“Matters outside the record present no issue for review.”).
12 CONCLUSION
13 {19} We reverse the district court’s suppression order and remand this case for
14 further proceedings consistent with this opinion.
15 {20} IT IS SO ORDERED.
16 __________________________________ 17 EMIL J. KIEHNE, Judge Pro Tempore
18 I CONCUR:
19 ________________________________________ 20 HENRY M. BOHNHOFF, Judge Pro Tempore
17 1 JULIE J. VARGAS, Judge (dissenting).
18 1 VARGAS, Judge (dissenting).
2 {21} The State unquestionably has a compelling interest in deterring drunk
3 driving and maintaining highway safety. Cf. Nance, 2011-NMCA-048, ¶ 26
4 (concluding the state’s interests outweighed the defendant’s in part because of a
5 “compelling public interest in eradicating DWI occurrences and their potentially
6 deadly consequences” (internal quotation marks and citation omitted)). I do not,
7 however, believe that our jurisprudence supports the majority’s conclusion that the
8 exigent circumstances of this case allowed for the warrantless, unauthorized arrest
9 of Defendant. Cf. id. ¶ 23 (rejecting conclusion that dissipation of alcohol alone is
10 exigency enough to justify warrantless entry into the home); see Majority Op. ¶ 14.
11 Instead, I agree with the district court that, on balance, Thompson’s actions were
12 constitutionally unreasonable under Article II, Section 10 of the New Mexico
13 Constitution, and the evidence obtained after Deputy Fulfer arrived on the scene
14 should be suppressed.
15 {22} The majority’s efforts to balance the State’s interests with Defendant’s
16 interests analyzes Defendant’s interests too narrowly, and in doing so, omits
17 important considerations that, though more conceptually than directly related to
18 Defendant, are still highly relevant to a reasonableness analysis.
19 {23} While the majority describes the intrusion on Defendant’s privacy as
20 “minimal,” the detention interfered with Defendant’s ability to enter her own home
19 1 after parking in her own driveway. The home is undeniably afforded the highest
2 level of protection by Article II, Section 10. State v. Nyce, 2006-NMSC-026, ¶ 12,
3 139 N.M. 647, 137 P.3d 587. While I recognize that this case does not implicate a
4 search or seizure taking place inside the home, it seems relevant—indeed,
5 compelling—that the intrusion impeded Defendant’s ability to enter her home and
6 move freely within her property. This limitation, however, is given little
7 consideration by the majority.
8 {24} Further, and perhaps more importantly, the majority fails to consider the
9 broader public interest in requiring that police and their volunteer officers comply
10 with our statutory laws. Cf. State v. Jones, 1998-NMCA-076, ¶ 15, 125 N.M. 556,
11 964 P.2d 117 (acknowledging public interest in law enforcement compliance with
12 DWI notice laws was strong enough to warrant reaching potentially moot issue on
13 appeal). As a member of the public, Defendant shares this interest. And, it is this
14 interest that I conclude ultimately tips the balance in Defendant’s favor. In
15 reaching this conclusion, I note that we are tasked, not only with settling the
16 dispute before us, but also with the responsibility of shaping the parameters of
17 police conduct and establishing standards to measure and inform law enforcement
18 practices. See State v. Ryon, 2005-NMSC-005, ¶ 11, 137 N.M. 174, 108 P.3d 1032
19 (“Although our inquiry is necessarily fact-based[,] it compels a careful balancing
20 of constitutional values, which extends beyond fact-finding to shape the parameters
20 1 of police conduct by placing the constitutional requirement of reasonableness in
2 factual context[.]” (internal quotation marks, and citation omitted)); Attaway,
3 1994-NMSC-011, ¶ 9-10 (acknowledging that search and seizure jurisprudence
4 reflects appellate efforts to “establish objective standards to measure and inform
5 law enforcement practices”).
6 {25} The Legislature’s intention that individuals be free from arrest by untrained
7 citizens is clear from the plain language of Section 66-8-124(A), authorizing only
8 commissioned, salaried peace officers to arrest. See Slayton, 2009-NMSC-054, ¶
9 27 (“[I]n setting forth the specific arrest procedures in Section 66-8-124, the
10 Legislature intended to abrogate the common law right to citizens’ arrests for
11 suspected violations of motor vehicle laws.”). Thompson’s testimony made clear
12 that he was aware he lacked statutory authority to stop Defendant. He nonetheless
13 found it appropriate to reach speeds well in excess of the posted speed limit in
14 order to follow Defendant home, shine a spotlight into Defendant’s property, light
15 up her parked car, and prevent her from entering her home. Thompson’s disregard
16 for the statutory limitations to his authority is particularly troubling in light of
17 suggestions throughout the record and briefing that this is not the first occasion on
18 which Thompson has disregarded the limitations of his position. Indeed, at the
19 suppression hearing, Thompson admitted that on one occasion, he engaged his
20 emergency lights and pulled over a defendant, though, when asked by defense
21 1 counsel, he didn’t recall the stop having been held to be illegal. Thompson also
2 admitted to having detained another defendant, but when asked by defense counsel
3 whether the evidence was suppressed and the case dismissed because of his “illegal
4 detention,” he responded only that he remembered “some part of the evidence was
5 suppressed.” The majority declined to consider these cases, concluding that
6 defense counsel’s questions “did not elicit any admissions[.]” Majority Op. ¶ 18.
7 While the majority is correct that Thompson avoided admitting that the evidence in
8 those cases was suppressed as a result of his wrongful conduct, in both of the cases
9 he admitted to having detained the defendants, conduct for which he had no
10 authority. Defendant’s and the public’s interest in ensuring that the police and their
11 volunteer officers comply with our statutory laws should be considered when
12 determining whether Thompson’s actions were constitutionally reasonable under
13 Article II, Section 10.
14 {26} Further, I am not persuaded by the majority’s argument that exigent
15 circumstances weighed in favor of Thompson’s temporary, though unlawful
16 detention of Defendant. Majority Op. ¶ 14. The majority reasons that had
17 Thompson not detained her, the investigation may have been more difficult
18 because Deputy Fulfer would have had to seek an arrest warrant to enter her home,
19 thereby allowing the alcohol in her system to dissipate. Id. Alternatively, the
20 majority reasons, Defendant may have driven away. Id. The record is devoid of
22 1 any evidence that Defendant planned to drive away, and the majority concedes,
2 “Thompson testified that he did not believe Defendant was attempting or intending
3 to flee.” Id. ¶ 4 n.1. Further, dissipation of alcohol is but one consideration in the
4 reasonableness analysis, see Nance, 2011-NMCA-048, ¶ 23, and when considered
5 in light of Defendant’s interest in entering her own home and moving freely within
6 her property and the added interest of requiring the police and its volunteer officers
7 to comply with our statutory law, I believe it is insufficient to render Thompson’s
8 actions reasonable. Thompson should have waited for Officer Fulfur, who, if
9 necessary, could have obtained a warrant. I believe that the balance of factors
10 weighs in favor of affirming the district court’s determination that Thompson’s
11 arrest of Defendant, which itself was a violation of Section 66-8-124(A), was
12 unreasonable under Article II, Section 10 and required the suppression of the
13 evidence obtained after Officer Fulfur arrived. Absent suppression, I have little
14 confidence that Thompson’s unlawful actions will be deterred. See State v.
15 Santiago, 2009-NMSC-045, ¶ 5, 147 N.M. 76, 217 P.3d 89 (holding that courts
16 suppress evidence obtained as fruit of an unconstitutional search or seizure to
17 redress and deter violations of the Fourth Amendment). I would affirm the district
18 court’s order granting the motion to suppress.
19 _____________________________ 20 JULIE J. VARGAS, Judge