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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 30,634 5 DAVID ZAMORA, 6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Jacqueline D. Flores, District Judge
9 Gary K. King, Attorney General 10 Pranava Upadrashta, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Jacqueline L. Cooper, Chief Public Defender 14 Kimberly Chavez Cook, Assistant Appellate Defender 15 Santa Fe, NM
16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Judge.
1 Defendant David Zamora appeals the judgment and sentence filed after he 2 entered a conditional guilty plea to aggravated driving while intoxicated. This Court 3 issued a memorandum opinion affirming but withdrew the opinion after Defendant 4 filed a motion for rehearing. Now, on rehearing, we again find no error in the district 5 court’s decision, and we affirm. 6 The Tribal Officer’s Authority Pursuant to NMSA 1978, Section 29-1-11 (2005) 7 Defendant claims that Officer Kathleen Lucero lacked authority to enforce the 8 New Mexico Traffic Code because she was not commissioned by the chief of the New 9 Mexico State Police, as required by Section 29-1-11. The meaning and application 10 of this statute are questions of law that we review de novo. State v. Nick R., 2009- 11 NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868. 12 Section 29-1-11 describes the procedures by which the chief of the New Mexico 13 State Police can issue a commission to a tribal officer, granting that officer authority 14 as a New Mexico peace officer to enforce state law. The commissioning requirements 15 include that the Indian tribe, nation, or pueblo of which the officer is a member have 16 a written agreement with the chief of the state police, that it demonstrate that it has 17 appropriate insurance to cover the officer, and that the officer complete a certain 18 number of hours of training, among other things. See § 29-1-11(B), (C). However, 19 nothing in the statute indicates that all tribal officers who are to be cross-
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1 commissioned as New Mexico peace officers must be cross-commissioned pursuant 2 to these procedures for commissioning by the chief of the state police. See State v. 3 Martinez, 2005-NMCA-052, ¶¶ 10-11, 137 N.M. 432, 112 P.3d 293 (holding that 4 Section 29-1-11’s requirements for commissions issued by the state police do not 5 apply to commissions issued by a county sheriff). In fact, the statute expressly 6 provides that it is not intended to limit the authority of county sheriffs to appoint “duly 7 commissioned state or federally certified officers who are employees of a police or 8 sheriff’s department of an Indian nation, tribe[,] or pueblo in New Mexico . . . to 9 enforce New Mexico criminal and traffic law.” Section 29-1-11(G). Accordingly, the 10 plain language of the statute, which is generally the best indication of legislative 11 intent, provides that county sheriffs are not bound by the requirements of Section 29- 12 1-11 when issuing commissions to tribal officers. See City of Albuquerque v. 13 Montoya, 2012-NMSC-007, ¶ 12, 274 P.3d 108 (“In discerning the Legislature’s 14 intent, we are aided by classic canons of statutory construction, and we look first to 15 the plain language of the statute, giving the words their ordinary meaning, unless the 16 Legislature indicates a different one was intended.” (alteration, internal quotation 17 marks, and citation omitted)). 18 Defendant argues that Section 29-1-11(G) cannot mean what it says because a 19 better reading of the statute would be that every tribal officer must be cross-
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1 commissioned pursuant to the requirements of Section 29-1-11. He asserts that such 2 a reading is necessary to promote uniformity in the education, training, and procedures 3 followed by tribal officers enforcing state law. Under Defendant’s proposed 4 interpretation, Section 29-1-11(G) does not mean that county sheriffs can cross- 5 commission tribal officers without complying with the requirements set out for cross- 6 commissions by the chief of the state police. Instead, it means exactly the 7 opposite—that county sheriffs may appoint only those tribal officers whose tribe, 8 pueblo, or nation has reached a formal agreement with the chief of the state police and 9 who have met the requirements for cross-commissioning by the chief of the state 10 police. 11 We find no support for Defendant’s argument. Regardless of whether it would 12 be wise as a policy matter to have all cross-commissioned tribal officers meet uniform 13 requirements, Defendant’s proposed reading directly contradicts Section 29-1-11(G). 14 Pursuant to that section, county sheriffs are not to be limited in their authority to 15 appoint tribal officers who are “employees of a police or sheriff’s department of an 16 Indian nation, tribe[,] or pueblo.” Id. Defendant’s reading would in fact limit their 17 authority by permitting a county sheriff to appoint only tribal officers who have met 18 all the requirements for appointment by the state chief of police and whose nation, 19 tribe, or pueblo have entered into a formal agreement with the chief of the state police.
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1 We decline to adopt a reading of the statute that is wholly contrary to the language of 2 Section 29-1-11(G) itself. See Montoya, 2012-NMSC-007, ¶ 12 (“We will not depart 3 from the plain wording of a statute, unless it is necessary to resolve an ambiguity, 4 correct a mistake or an absurdity that the Legislature could not have intended, or to 5 deal with an irreconcilable conflict among statutory provisions.” (internal quotation 6 marks and citation omitted)); see also State v. Glen Slaughter & Assocs., 119 N.M. 7 219, 224-25, 889 P.2d 254, 259-60 (Ct. App. 1994) (stating that, where possible, this 8 Court should avoid adopting a strained interpretation of statutory language). If the 9 Legislature intended to permit county sheriffs to cross-commission only those tribal 10 officers whose governments had agreements with the chief of the state police and who 11 had met the requirements of Section 29-1-11, it could have said so directly. 12 The Tribal Officer’s Authority as a Special Deputy to Preserve the Peace 13 Even if Officer Lucero could have been cross-commissioned without meeting 14 all of the requirements of Section 29-1-11, Defendant argues that she was not 15 authorized to conduct the stop in this case because she was a special deputy who was 16 commissioned pursuant to NMSA 1978, Section 4-41-10 (2006). Section 4-41-10 17 provides that county sheriffs are authorized “to appoint respectable and orderly 18 persons as special deputies to serve any particular order, writ or process or when in 19 the opinion of any sheriff the appointment of special deputies is necessary and
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1 required for the purpose of preserving the peace[.]” Defendant contends that pursuant 2 to this statute, special deputies are only permitted to either serve documents or to 3 engage in preserving the peace. Defendant’s interpretation of the meaning of 4 “preserving the peace” in the statute would limit the appointment of special deputies 5 to circumstances where there is a “sudden and urgent need for extra manpower in a 6 crisis.” 7 New Mexico law does not support Defendant’s narrow definition of preserving 8 the peace. In New Mexico, a breach of peace is considered “a disturbance of public 9 order by an act of violence, or by any act likely to produce violence, or which, by 10 causing consternation and alarm, disturbs the peace and quiet of the community.” 11 State v. Florstedt, 77 N.M. 47, 49, 419 P.2d 248, 249 (1966) (internal quotation marks 12 and citation omitted). Our Supreme Court has held that “a person driving while 13 intoxicated is committing a breach of the peace.” State v. Rue, 72 N.M. 212, 216, 382 14 P.2d 697, 700 (1963). Accordingly, we conclude that Officer Lucero was preserving 15 the peace when she stopped Defendant to investigate whether he was driving while 16 intoxicated and that she was authorized to do so as a special deputy. 17 The Challenge to the Warrantless Arrest 18 Defendant contends that NMSA 1978, Section 66-8-125 (1978), precluded the 19 tribal officer from conducting the warrantless arrest in this case. Section 66-8-125(A)
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1 allows for warrantless arrests of people at the scene of a motor vehicle accident, 2 people charged with theft of a motor vehicle, and people charged with a crime in 3 another jurisdiction. As none of these circumstances were involved in this case, we 4 cannot see how the statute would apply. More importantly, however, Defendant 5 points to no place in the record where he preserved any argument about the propriety 6 of the warrantless arrest. Instead, his arguments were solely about the officer’s 7 authority pursuant to Section 29-1-11 and Section 4-41-10. We therefore decline to 8 reach this argument. See Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 9 721 (Ct. App. 1987) (“To preserve an issue for review on appeal, it must appear that 10 [the] appellant fairly invoked a ruling of the trial court on the same grounds argued 11 in the appellate court.”). 12 Reasonable Suspicion for the Stop 13 Defendant appeals the denial of his motion to suppress based on his assertion 14 that the officer did not have reasonable suspicion to stop him. “Appellate review of 15 a district court’s decision regarding a motion to suppress evidence involves mixed 16 questions of fact and law.” State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 17 P.3d 964. The appellate court “[does] not sit as a trier of fact; the district court is in 18 the best position to resolve questions of fact and to evaluate the credibility of 19 witnesses.” Id. The appellate courts “view the facts in the manner most favorable to
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1 the prevailing party and defer to the district court’s findings of fact if substantial 2 evidence exists to support those findings.” Id. 3 Here, a motorist had made a call to the Isleta Police Department to report a 4 “possible intoxicated driver.” The vehicle was reported to be a small pickup truck that 5 was “primer in color” or a “white primer” color. The caller reported that the caller 6 was in a maroon Ford Expedition driving right behind the possibly intoxicated driver 7 and that they were heading north on State Road 314, approaching the intersection with 8 State Road 45. The officer, who had been approximately one minute away from the 9 intersection at the time of the dispatch, went to the intersection of State Road 314 and 10 State Road 45, where she saw a small pickup truck that matched the description and 11 saw a maroon Ford Expedition driving approximately four car lengths behind the 12 pickup truck. The pickup truck was driving at a high rate of speed but stopped and 13 turned left into the parking lot of the Palace Wells Casino without using its turn signal. 14 The officer followed and, based on the tip and the failure to use the turn signal, 15 engaged Defendant in a traffic stop. 16 Defendant contends that the tip provided by the driver in the Ford Expedition 17 was not sufficiently corroborated to support a reasonable suspicion for the stop. First, 18 Defendant argues that his vehicle did not match the caller’s description because his 19 vehicle is white; the caller described the vehicle as “primer in color,” and Defendant
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1 believes that primer is commonly known to be grey. However, Defendant provides 2 no evidence to support his contention that primer is known to be grey. See State v. 3 Gonzales, 2011-NMCA-007, ¶ 30, 149 N.M. 226, 247 P.3d 1111 (explaining that we 4 will not consider arguments based on factual allegations that are unsupported by 5 citation to the record proper), cert. denied, 2010-NMCERT-012, 150 N.M. 492, 263 6 P.3d 269. Furthermore, the evidence of the caller’s description was ambiguous in that 7 at one point, the officer testified that the vehicle was described as “primer in color,” 8 and at another point, she testified that the vehicle matched the description because it 9 was a “white primer” color. To the degree that there was any ambiguity about 10 whether the caller actually described the truck as “primer in color” or a “white primer” 11 color, the district court sitting as the factfinder was entitled to resolve this ambiguity 12 to conclude that the color of Defendant’s white pickup truck matched the description 13 given by the caller. In addition, the color of the vehicle was not the only evidence on 14 which the officer could have reasonably concluded that Defendant’s truck was the 15 vehicle described by the caller. There was also the fact that a vehicle matching the 16 description of the caller’s was driving four lengths behind Defendant’s truck and that 17 the truck was heading in the direction and was at the location where the caller said it 18 would be. Together, this information was sufficient to identify Defendant’s truck as 19 the one described by the caller.
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1 Defendant also asserts that the tip was not sufficiently corroborated because the 2 officer did not observe the conduct reported in the tip: the truck’s failure to maintain 3 its lane. However, this Court has held that an officer may stop a vehicle to investigate 4 a tip of possible drunk driving even when the officer herself does not observe any 5 erratic driving. See State v. Contreras, 2003-NMCA-129, ¶ 21, 134 N.M. 503, 79 6 P.3d 1111. This is because the exigency created by a drunk driver is so great, and the 7 intrusion of a brief traffic stop is relatively small, such that a brief stop to investigate 8 a tip of possible drunk driving will generally be held to be reasonable. Id. Here, as 9 in other cases upholding such stops, the facts of the case permitted the inference that 10 the anonymous caller was a concerned motorist, the information was detailed enough 11 to permit the officer to locate the vehicle in question and to confirm its description, 12 and the caller was an apparent eyewitness to the erratic driving. See id. Accordingly, 13 the tip alone was sufficient to justify the stop. 14 Even if the tip had not been sufficient to justify the stop, the officer’s 15 observation of Defendant’s failure to use his turn signal provided a sufficient basis. 16 NMSA 1978, § 66-7-325(A) (1978), requires the use of a turn signal before turning 17 if “any other traffic may be affected by such movement.” Here, the Ford Expedition 18 was four car lengths behind Defendant, and the officer was also on the road. The fact 19 that there were these two other vehicles on the road was sufficient to provide a
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1 reasonable suspicion that other traffic could have been affected by Defendant’s turn. 2 See State v. Hubble, 2009-NMSC-014, ¶¶ 2, 11, 20, 34, 146 N.M. 70, 206 P.3d 579 3 (holding that even when the only other traffic in the area was the officer’s vehicle, this 4 evidence was sufficient, when viewed in the light most favorable to the state, to 5 support a stop based on Section 66-7-325(A)); cf. State v. Anaya, 2008-NMCA-020, 6 ¶ 19, 143 N.M. 431, 176 P.3d 1163 (holding that when the only other traffic in the 7 area was the officer’s vehicle, this evidence was insufficient, when viewed in the light 8 most favorable to the defendant, to support a stop based on Section 66-7-325(A)). 9 Therefore, for the reasons stated in this Opinion, we affirm the district court. 10 IT IS SO ORDERED.
11 __________________________________ 12 LINDA M. VANZI, Judge
13 WE CONCUR:
14 _________________________________ 15 JONATHAN B. SUTIN, Judge
16 _________________________________ 17 TIMOTHY L. GARCIA, Judge