IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

1
Opinion Number : 2
Filing Date : February 14, 2019 3

No. A

- 1

- CA

- 35497 4

STATE OF NEW MEXICO , 5

Plaintiff

- Appellant
, 6

v

. 7

SOMER D. WRIGHT , 8

Defendant

- Appellee. 9

APPEAL FRO M THE DISTRICT COURT OF TORR A NCE COUNTY 10 Matthew G. Reynolds , District Judge 11
Hector H. Balderas, Attorney General 12 Santa Fe, NM 13 Charles J. Gutierrez, Assistant Attorney General 14 Albuquerque , NM 15
for Appellant 16

Bennett J. Baur, Chief Public Defender 17 Mary Barket, Assistant Appellate Defender 18 Santa Fe, NM 19

for Appellee 20OPINION

1

KIEHNE , Judge Pro Tempore

. 2

{1 } A reserve deputy sheriff’s officer followed Defendant Somer Wright hom e 3
after seeing her truck driving erratically on the highway. When Defendant arrived 4

home, her truck struck a parked vehicle in the driveway, and then backed up, 5

almost hit ting the reserve deputy’s vehicle. The reserve deputy approached 6

Defe ndant’s truck and, after she admitted to having drunk four beers, advised her 7
to “hang tight.” Defendant sat in her truck until a regula r commissioned deputy 8

sheriff arrived four to five minutes later to continue the investigation. Defendant 9
was ultimately charged with driving while intoxicated (DWI)

. 10

{2 } It is undisputed that the reserve deputy lacked statutory authority under the 11
Motor Vehicle Code to require Defendant to remain in her truck until the 12
commissioned deputy arrived on the scene . It is also undisputed that the reserve 13
deputy’s action constituted an arrest under New Mexico law , albeit one that did not 14
violate the Fourth Amendment. The question we must decide is whether the arrest 15
was constitutionally un reasonable under Ar ticle II, Section 10 of the New Mexico 16

Constitution

. Th e district court found that the reserve deputy’s action was 17

unconstitutional
, and suppressed all evidence obtained by law enforcement after 18
the reserve deputy directed Defendant to “hang tight.” The St ate now appeals. 192

{3 } We conclude that the arrest was constitutionally reasonable, because the 1
State’s strong interest in apprehending and prosecuting drunk drivers outweighed 2
the minor intrusion on Defendant’s privacy rights . We ther efore reverse the district 3
court’s suppression order. 4

BACKGROUND 5

{4 } On the evening of March 15, 2014 , Torrance County Reserve Deputy Roy 6
Thompson was on duty in a marked patrol car belonging to the Torrance County 7

Sheriff’s Department. He wore a uniform and badge that identified him as a deputy 8
and were largely indisti nguishable from those of a full

- time regular deputy

. 9
Thompson was traveling down Highway 41 when he was approached from behind 10
by two vehicles. Believing they w ere exceeding the 55 mile

- per

- hour posted speed 11
limit, Thompson pulled off the highway to let those vehicles pass

. The headlights 12

on one of the vehicles kept moving “back and forth,” and as Thompson pulled 13

over, one of the vehicles , a white Dodge truck dri ven by Defendant, crossed the 14
outer white line and nearly struck Thompson’s vehicle

. Thompson’s radar showed 15
that Defendant’s truck was traveling at sixty

- eight miles per hour, and Thompson 16
sped up to around eighty miles per hour and passed another vehicle to catch up 17

with Defendant

. While traveling behind Defendant
, Thompson used his personal 18

cell phone to contact Deputy Ron Fulfer, the only full

- time deputy on duty in 19
Torrance County that evening , who instructed Thompson to follow the truck and 203

initiate a stop only if necessary to do so for safety reasons

. Thompson also ran the 1
truck’s license plate number and obtained Defendant’s address

. Thompson 2

followed the truck to a private residence matching the vehicle’s registered address

. 3

When Defendant pulled the truck into her driveway, she struck another vehicle that 4

was already parked there. Defendant backed up after hitting the parked car, and 5
according to Thompson, nearly struck his patrol car 1 as he pulled up behind 6

Defendant’s truck and parked on the hi ghway

. Though he never activated his 7

eme rgency lights, Thompson did shine the patrol car’s spotlight on the now

8
stationary truck before approaching Defendant on foot

. Defendant remained in the 9
driver’s seat of the truck, with the engine running and the lights on

. 10

{5 } Thompson identified himself as a reserve deputy, and pointed out to 11

Defendant that she had hit the vehicle in the driveway and nearly hit his patrol car, 12

to which Defendant responded by stating, in substance, that the car in her driveway 13

was hers, and she could hit it if she wanted to

. At that point, Thompson smelled the 14
odor of alcohol and asked if Defendant had been drinking

. She acknowledged that 15

she had consumed “ four green beers ,” apparently in celebration of the then 16
upcoming St. Patrick’s Day holiday

. Thompson instructed Defendant to “hang 17
tight” until Deputy Fulfer arrived. Thompson then returned to and sat in his patrol 18

1 Thompson testified that he did not believe Defendant was attempting or intended to flee.4

car

. Defendant followed Thompson’s direction by remaining in her vehicle , and 1
approximately four to five minutes later, Deputy Fulfer arrived, conducted a DWI 2
investigation
, and arrested Defendant for DWI

. Defendant was ultimately charged 3
with aggravated DWI, contrary to NMSA 1978, § 66

- 8

- 102(A)
, (D)(1) (2010
, 4

amended 2016 ), w hich carries a penal ty of up to ninety days’ imprisonment and a 5

fine of not more than $500. See § 66

- 8

- 102(E). 6

{6 } Defendant moved to suppress the evidence obtained after Deputy Fulfer 7

arrived on th e scene, arguing that it was obtained as a result of an unlawful seizure 8

in violation of Article II, Section 10 of the New Mexico Constitution

. T he district 9

court granted Defendant’s suppres sion motion following a hearing, conclud ing that 10
(1 ) Thompson’s “temporary detention” of Defendant constitute d an “arrest” within 11
the meaning of NMSA 1978, § 66

- 8

- 124(A) (2007) ( provid ing that “[n]o person 12
shall be arrested for violating the Motor Vehicle Code

. . . or other law relating to 13
motor vehicles punishable as a misdemeanor except by a commissioned, salaried 14
peace officer who, at the time of arrest, is wearing a uniform clearly indicating the 15
peace officer’s official status” ) ; (2 ) Defendant’s arrest was not authorized by 16

Section 66

- 8

- 124(A) because Thompson was not a commissioned, salaried deputy; 17

and (3 ) Defendant’s arrest, while not violati ng the Fourth Amendment
, did violate 18

Article II, Section 10 of the New Mexico Constitution

. The State now appeals. 195

DISCUSSION 1

{7 } “Appellate review of a motion to suppress presents a mixed question of law 2

and fact .” State v. Paananen , 2015

- NMSC

- 031, ¶ 10, 357 P.3d 958 (internal 3
quotation marks and citation omitted) . “We review the [district] court’s ruling on a 4
defendant’s motion to suppress to determine whether the law was correctly applied 5

to the facts
, viewing them in th e manner most favorable to the prevailing party.” 6

State v. Ortiz , 2017

- NMCA

- 062, ¶ 9, 400 P.3d 312 ( alteration, internal quotation 7

marks, and citation omitted)
, cert. denied
, 2017

- NMCERT

- ___ (No. S

- 1

- SC

8

36492, June 22, 2017 ) . “While we afford de novo review of the [district] court’s 9
legal conclusions, we will not disturb the [district] court’s factual findings if they 10
are supported by substantial evidence.” Id. (internal quotation marks and citation 11
omitted). 12

{8 } We begin our analysis by setting out several undisputed legal and 13
constitutional precepts that would normally serve as building blocks of an analysis 14
under Article II, Section 10. First, the State concedes that Thompson’s actions in 15
temporarily detaining Defendant amounted to an “arrest” as that term is used in 16

Section 66

- 8

- 124(A)

. See State v. Slayton
, 2009

- NMSC

- 054, ¶ 20, 147 N.M. 340, 17

22 3 P.3d 337 (concluding that “temporary detentions are covered under the term 18

‘ arrest ’ as used in Chapter 66 as well as custodial arrests”); State v. Bricker , 2006

- 19

NMCA

- 052, ¶ 9, 139 N.M. 513, 134 P.3d 800 (same). The State also agrees , as it 206

must, that Tho mpson was not a commissioned, salaried peace officer under Section 1

66

- 8

- 124(A) and therefore acted without statutory authority when he temporarily 2

detained Defendant

. Neither party disputes that Thompson’s temporary detention 3
of Defendant, although statuto rily unauthorized, did not violate the Fourth 4

Amendment

. See Slayton , 2009

- NMSC

- 054, ¶¶ 30

- 33 (holding that the defendant’s 5
statutorily unauthorized detention by a police service aide did not violate the 6
Fourth Amendment). Finally , there is no dispute that Thompson was acting in h is 7
capacity as a reserve deputy on behalf of Torrance County when he began 8
following Defendant ’s vehicle and that his temporary detention of Defendant 9
therefore amounted to a seizure by a state actor

. See id. ¶¶ 21

- 27. Given the 10

pa rties’ consensus on these matters, the sole issue before us is whether 11
Thompson’s actions violated Article II, Section 10 of the New Mexico 12
Constitution, which guarantees the right to be free “from unreasonable searches 13

and seizures.” 14

{9 } Our Supreme Court has often interpreted Article II, Section 10 to provide 15
significantly greater protections than those afforded under the Fourth Amendment. 16

See, e.g. , State v. Cardenas

- Alvarez , 2001

- NMSC

- 017, ¶¶ 2, 5, 130 N.M. 386, 25 17
P.3d 225 (holding that extended detention of a defendant at border checkpoint was 18
unlawful under Article II, Section 10); State v. Gomez , 1997

- NMSC

- 006, ¶¶ 39, 19

44, 122 N.M. 7 77, 932 P.2d 1 (rejecting federal automobile exception to warrant 207

requirement in favor of greater protections under Article II, Section 10); State v. 1
Attaway , 1994

- NMSC

- 011, ¶ ¶ 22, 25, 117 N.M. 141, 870 P.2d 103 (holding that 2
Article II, Section 10 requires officer executing search war rant to “knock and 3
announce”); Campos v. State , 199 4

- NMSC

- 012, ¶¶ 10, 14, 117 N.M. 155, 870 4
P.2d 117 (requiring warrantless arrest to be based on both probable cause and 5
sufficient exigent circumstances). New Mexico courts have specifically applied 6
this greater constitutional protection to motorists. S ee C ardenas

- Alvarez , 2001

- 7

NMSC

- 017, ¶ 15 ( stating that “[t]he extra layer of protection from unreasonable 8
searches and seizures involving automobiles is a distinct characteristic of New 9

Mexico constitutional law [
, ] ” and observing that the New Mexico Supreme C ourt 10
has “dismissed the notion that an individual lowers his expectation of privacy 11

when he enters an automobile [

. ] ”). 12

{1 0 } When conducting an analysis under Article II, Section 10, we initially 13
consider “whether the right being asse rted is protected under the federal 14

Constitution

. ” Cardenas

- Alvarez , 2001

- NMSC

- 017, ¶ 6. We agree with the district 15

court and the parties that Thompson’s statutorily unauthorized, temporary 16

detention of Defendant did not violate the Fourth Amendment. Our S upreme Court 17
previously addressed the Fourth Amendment ’s application to a seizure made by a 18

non

- commissioned police service aide in violation of Section 66

- 8

- 124(A), the 19

same statute at issue here, in Slayton , 2009

- NMSC

- 054, and concluded that the 208

service aide’s lack of statutory authority to arrest the defendant did not by itself 1

amount to a Fourth Amendment violation. Id. ¶ 33 ( stating that “ t he Fourth 2
Amendment is not concerned with a state actor’s violation of a statute governing 3
who may seize a person suspected of committing a crime [

. ] ” ). The Slayton Court, 4

however, did not have occasion to consider whether the New Mexico Constitution 5
would have prohibited the seizure. This case requires us to consider the question 6

that Slayton left unanswered

— does the seizure of a defendant by a government 7

actor lacking statutory authority to act violate Article II, Section 10, thus requiring 8
suppression of the evidence gathered as a result of the seizure? 9

{1 1 } When considering an Article II, Section 10 claim, “New Mexico courts have 10
consistently rejected federal bright

- line rules in favor of an examination into the 11

reasonableness of officers’ actions under the circumstances of each case.” State v. 12

Ochoa , 2009

- NMCA

- 002, ¶ 24, 146 N.M. 32, 206 P.3d 143; see State v. Granville
, 13

2006

- NMCA

- 098, ¶ 18, 140 N.M. 345, 142 P.3d 933 (stating that “[i]n all cases 14
that invoke Article II, Section 10, the ultimate question is reasonableness”). “ Th e 15
Constitution only proscribes

. . . those searches and seizures which are 16

unreasonable. ” State v. Werner , 1994

- NMSC

- 025, ¶ 11, 117 N.M. 315, 871 P.2d 17
971. Evidence seized in violation of Article II, Section 10 must be suppressed. See 18

State v. Gutierrez , 1993

- NMSC

- 062, ¶ 45, 116 N.M. 431, 863 P.2d 1052 (“[T]he 19
New Mexico constitutional prohibition against unreasonable searches and seizures 209

requires that we deny the state the use of evidence obtained in violation of Article 1
II, Section 10 in a criminal pr oceeding.”). Analysis of constitutional 2

reasonableness in t his case is guided largely by this Court’s previous decisions in 3

State v. Rodarte , 2005

- NMCA

- 141, 138 N.M. 668, 125 P.3d 647, and State v. 4

Bricker , 2006

- NMCA

- 052 . In Rodarte , we addressed whether the New Mexico 5
Constitution allows “an officer [to] arrest an individual solely on the basis of 6
probable cause that a minor criminal offense for which jail time is not authorized 7

has been committed.” 200 5

- NMCA

- 141, ¶ 1. In that case, a police officer 8
subjected the defendant to a full custodial arrest for being a m inor in possession of 9

alcohol, a misdemeanor offense which carried with it no jail time. Id. ¶¶ 3

- 4. Four 10
years earlier, in Atwater v. City of Lago Vista , 532 U.S. 318 , 323 (2001), a narrow 11
majority of the Supreme Court of the United States adopted a brigh t

- line rule that 12
an arrest based solely on probable cause for a minor offense for which jail time 13
was not authorized (in that case, a seatbelt violation) was reasonable under the 14

Fourth Amendment. In a forceful dissent, Justice O’Connor took the view that 15
reasonableness under the Fourth Amendment should be determined by balancing 16
“the degree to which [the arrest] intrudes upon an individual’s privacy” and “ the 17
degree to which [the arrest] is needed for the promotion of legitimate governmental 18

interests.” Id

. at 361 (quoting Wyoming v. Houghton , 526 U.S. 295, 300 (1999)). 19
Justice O’Connor stated that “the penalty that may attach to any particular offense 2010

seems to provide the clearest and most consistent indication of the [s] tate’s interest 1
in arresting indivi duals suspected of committing that offense.” Id. at 365 (quoting 2

Welsh v. Wisconsin , 466 U.S. 740, 754 n.14 (1984)). Thus, under this calculus, 3
probable cause alone does not make an arrest reasonable where an offense is not 4
punishable with jail time; rathe r, there must be “ ‘specific and articulable facts 5
which, taken together with rational inferences from those facts, reasonably warrant 6
[the additional] intrusion’ of a full custodial arrest.” Id. at 366 (alteration in 7
original) (quoting Terry v. Ohio , 392 U.S. 1, 21 (1968)). In Rodarte , this Court 8
adopted Justice O’Connor’s approach as being more consistent with New Mexico’s 9
jurisprudence under Article II, Section 10, which has stressed the importance of 10

case

- by

- case determinations of reasonableness a nd avoided bright

- line rules. 2005

- 11

NMCA

- 141, ¶¶ 13

- 16. 12

{1 2 } The next year, in Bricker , 2006

- NMCA

- 052, we addressed the constitutional 13

reasonableness of a full custodial arrest of a defendant suspected of dri ving with a 14
suspended license, a misdemeanor punishable by a j ail term of up to 364 days 15

under NMSA 1978, Section 66

- 5

- 39(A) (2013)

. Because the governing Motor 16

Vehicle Code provision s , Sections 66

- 8

- 122(G) and 66

- 8

- 123(A), require d the 17

issuance of a citat ion and the release of an offending motorist in lieu of a custodial 18

arrest unless the underlying l icense suspension resulted from the violation of 19

certain DWI

- related laws, and the state presented no evidence about the reason for 2011

the defendant’s license su spension, this Court therefore concluded that the 1

defendant’s custodial arrest violated the statute and was unlawful

. Id. ¶ 14. To 2

determine whether evid e nce obtained as a result of the statutorily unauthorized 3
arrest should be suppressed, we considered whether the arrest violated Article II, 4
Section 10 and applied the balancing

- of

- interests test that we adopted in Rodarte

. 5

Bricker
, 2006

- NMCA

- 052, ¶¶ 14, 2 3 , 26. This Court pointed to the statute’s 6
requirement that offenders be cited and releas ed as evincing the Legislature’s 7

intent “to protect individual liberty ov er perceived governmental need,” an intent 8
which we characterized as having “constitutional bearing.” Id. ¶ 29. This Court 9

also noted that the possibility of jail time faced by one convicted of driving with a 10
suspended license did not alter the analysis
, explaining that “[j]ailability cannot 11
justify overlooking an unlawful custodial arrest and permitting searches based on 12

the unlawful arrest” because the “intrusion upon one’s liberty is no less significant 13
in cases in which the offense is jailable than in cases in which the offense is non

14
jailable.” Id. ¶ 27. In all, we concluded in Bricker that the defendant’s custodial 15

arrest, made without statutory authority, failed the test of con stitutional 16

reasonableness under Article II, Section 10. Bricker
, 2006

- NMCA

- 052, ¶ 20. 17

{1 3 } In assessing t he constitutional reasonableness of Thompson’s detention of 18

Defendant in this case
, we must apply the balancing

- of

- interests test that we 19
employed in Rodarte and Bricker , which , as indicated, requires us to evaluate, “on 2012

the one hand, the degree to which [the seizure] intrude[d] up on [Defendant]’s 1
privacy and, on the other, the degree to wh ich [the seizure was] needed for the 2
promotion of legitimate governmental interests.” Atwater , 532 U.S. at 361 3
(O’Connor, J., dissenting) (internal quotation marks and citation omitted)

. 4
Applying this balancing test to the facts of this case, we hold that Thompson’s 5
temporary detention of Defendant was constitutionally reasonable. U nder the 6
totality of the circumstances, the intrusion on Defendant’s privacy was minimal. 7
After all, despite observing Defendant’s speeding and erratic driving on a public 8
highwa y, Thompson did not attempt to pull her over or activate the emergency 9
lights on his patrol car

. Instead, he followed Defendant to her home and, once 10

there, shone a spotlight o n her truck and approached it by foot. Upon making 11

contact with Defendant, he spoke to her briefly, instructed her to rem ain where she 12

was, and returned to his patrol car, where he wa ited for Deputy Fulfer’s arrival

. 13
Defendant remained in the driver’s seat of her truck, with the engine running, for 14

about four or five minutes until D eputy Fulfer arrived to take charge of the 15
investigation. See generally State v. Nance , 2011

- NMCA

- 04 8 , ¶ 26 , 149 N.M. 644, 16

253 P.3d 934 (stating that police intrusion into the defendant’s privacy was “de 17
minimis” and a “slight intrusion” where they asked h im to stand outside his home 18

for fifteen minutes during a DWI investigation). Thompson did not ask to see 19
Defendant’s driver’s license, registration, or insurance information; he did not 2013

instruct Defendant to step out of her truck or wait in his patrol car ; he did not 1
brandish a weapon; and he did not place Defendant in handcuffs or otherwise 2
physically restrain her freedom of movement. He simply told Defendant to “hang 3
tight” until Deputy Fulfer arrived. 4

{1 4 } By contrast, under the circumstances of this case, the State’s need to 5
temporarily detain Defendant far outweighed whatever brief, minimal privacy 6

intrusion that Defendant may have experienced. It is well recognized that the 7
State’s interest in removing drunk drivers from its ro ad ways is compelling

. S ee 8

State v. Johnson , 2001

- NMSC

- 001, ¶ 17, 130 N.M. 6, 15 P.3d 1233 ( noting that 9
“the public interest and potential harm posed by intoxicated drivers is so 10
compelling that the offense of DWI is a strict liability crime”) (citation omi tted); 11

Nance , 2011

- NMCA

- 048, ¶ 26 (concluding that the state’s interests outweighed 12

the defendant’s in part because of a “compelling public interest in eradicating DWI 13
occurrences and their potentially deadly consequences” ( alteration, internal 14
quotation marks, and citation omitted)). DWI is a mo re serious offense than being 15

a mi nor in possession of alcohol , the offense involved in Rodarte , or driving with a 16
suspended license
, the offense at issue in Bricker

. It also bears emphasis that by the 17

time Thompso n detained Defendant, he had seen her driv e over the speed limit
, 18

weave back and forth on the highway
, collide with a parked vehicle and nearly hit 19

h is patrol car, and had heard her admit to consuming four beers. See City of Santa 2014

Fe v. Martinez , 2010

- NMSC

- 033, ¶ 16, 148 N.M. 708, 242 P.3d 275 (“ [T] he 1
warrantless arrest of one suspected of committing DWI is valid when supported by 2
both probable caus e and exigent circumstances.”). Exigent circumstances also 3
weighed in favor of a temporary detention, because otherwise Defendant might 4

have entered her house and refused to come back outside once Deputy Fulfer 5
arrived, thereby delaying and complicating the DWI investigation by requiring 6
Deput y Fulfer to seek an arrest warrant in order to enter Defendant’s home

. See 7

Nance , 2011

- NMCA

- 048, ¶ 23 (rejecting conclusion that dissipation of alcohol 8
alone is exigency enough to justify warrantless entry into the home). Alternatively, 9

Defendant might have tried to drive away, a circumstance which could have posed 10

a serious danger to the public. 11

{1 5 } Defendant offers several reasons to uphold the district court’s suppression 12

order, but none of them are persuasive. First, she argues that near

- controlling 13
weight should be given to Thompson’s violation of Section 66

- 8

- 124(A), which, as 14

she puts it , limits the authority to arrest “to those possessing appropriate law 15
enforcement authority, training, and experience there by protecting the same 16
privacy and liberty interests protected by Article II, Section 10.” While in no way 17
condoning Thompson’s violation of the statute, we decline Defendant’s invitation 18

to treat that violation as dispositive of our constitutional analysi s , an approach 19

which would be contrary to our Supreme Court’s aversion to bright

- line rules when 2015

applying Article II, Section 10, and its direction that courts employ a case

- by

- case 1
approach in determining reasonableness. Moreover, unlike the statute at is sue in 2

Bricker , which em

bodied the Legislature’s intent that no one should be subjected 3
to a full custodial arrest for driving on a suspended license (provided that the 4
suspension was unrelated to a violation of the DWI laws), Section 66

- 8

- 124(A)
, 5

the stat ute at issue here, does not reflect a similar legislative policy

. Rather, 6

Section 66

- 8

- 124(A) merely limits the class of persons who may subject a motorist 7
to a temporary detention or arrest. It says nothing about
, and does not detract from
, 8

the seriousnes s of DWI or the State’s compelling interest in apprehending drunk 9

drivers. 10

{1 6 } Second, point ing to Thompson’s relative lack of training and experience
, 11

Defendant contends that upholding the temporary detention here would 12
“encourage [ ] abuse and arbitrary governmental intrusion

. ” Significantly, however, 13

Defendant does not argue, much less show, that Thompson’s relative lack of 14
experience and training harmed her in any way, and therefore supp ression is not 15
justified on the basis of this undeveloped “lack of training” argument. See State v. 16

Guerra , 2012

- NMSC

- 014, ¶ 21, 278 P.3d 1031 (reiterating that appellate courts do 17
not review unclear or undeveloped arguments)

. This is not to suggest that w e are 18
unsympathetic to Defendant’s stated concern s , and we take this opportunity to 19
warn law enforcement agencies that this opinion does not give them carte blanche 2016

to allow reserve deputies to detain motorists. Under New Mexico’s case

- by

- case 1
approach in reviewing claimed violations of Article II , Section 10, it is easy to 2

envision a case involving a greater intrusion on a motorist’s privacy than occurred 3
here, or a less compelling state interest than existed here, either of which might be 4

sufficient to justify suppression. A county sheriff ’s cond uct in encouraging or 5
turning a blind eye to a reserve deputy ’s violat ion of Section 66

- 8

- 124(A) 6
jeopardizes the legitimate enforcement of the Motor Vehicle Code. 7

{1 7 } Third, Defendant argues that Thompson’s actions in speeding to catch up 8

with her truck, in closely following her
, and in directing her to remain in her 9
vehicle were “entirely unnecessary,” concluding that the resulting detention did not 10

promot e any legitim ate governmental interests

. Defendant also argues that any 11
police concern that she might try to enter her home, thus making the investigation 12
more difficult, was speculative; that requiring her to remain in her truck achieved 13
only a “minor convenience ” for the polic e ; and that the State’s interests could have 14
been satisfied by a simple police request that Defendant consent to stay outside 15
until Deputy Fulfer arrived. We disagree with these arguments. As Thompson 16
explained, he sped up to follow Defendant to help ensure that she would not 17
endanger other motorists
, including those who might be traveling in the opposite 18

direction ( fortuitously, there were none). And allowing Defendant to enter her 19

home in these circumstances would likely have impeded the police investigation

. 2017

{1 8 } Finally, Defendant argues that Thompson had violated Section 66

- 8

- 124(A) 1
on previous occasions, demonstrating that his present “violation of the statute was 2
not accidental or unknowing [,] ” and therefore should not be considered de 3

minimis

. While defense counsel questioned Thompson about other cases in which 4

he had been involved, this inquiry did not elicit any admissions, and defense 5
counsel did not introduce any evidence into the record about the facts and 6

circumstances of any other cases

. We therefore do not consider this argument. See 7
Proper v. Mowry , 1977

- NMCA

- 080, ¶ 37, 90 N.M. 710, 568 P.2d 236 ( “Remarks, 8
arguments and statements of lawyers are not evidence

. ” (internal quotation marks 9

and citation omitt ed) ) ; State v. Romero
, 1975

- NMCA

- 017, ¶ 2, 87 N.M. 279, 532 10
P.2d 208 (“ Matters outside the rec ord present no issue for review

. ”)

. 11

CONCLUSION 12

{1 9 } We reverse th e district court’s suppression order and remand this case for 13

further proceedings consistent with this opinion. 14

{ 20 } IT IS SO ORDERED. 15

______________________________ ____ 16 EMIL J. KIEHNE, Judge Pro Tempore 17

I CONCUR: 18

_____________________________ ___________ 19 HENRY M. BOHNHOFF, Judge Pro Tempore 2018

JULIE J. VARGAS, Judge (dissenting). 119

VARGAS, Judge (dissenting). 1

{ 2 1 } T he State unquestionably has a compelling interest in deterring drunk 2
driving and maintaining highway safety. Cf. Nance , 2011

- NMCA

- 048, ¶ 26 3
(concluding the state’s interests out weighed the defendant’s in part because of a 4
“compelling public interest in eradicating DWI occurrences and their potentially 5
deadly consequences” (internal qu otation marks and citation omitted)). I do not, 6

however, believe that our jurisprudence supports the majority’s conclusion that the 7
exigent circumstances of this case allowed for the warrantless, unauthorized arrest 8

of Defendant

. Cf. id. ¶ 23 (rejecting conclusion that dissipation of alcohol alone is 9
exigency enough to justify warrantless entry into the home) ; s ee Majority Op

. ¶ 14

. 10
Instead, I agree with the district court that, on balance, Thompson’s actions were 11
constitutionally unreaso nable under Article II, Section 10 of the New Mexico 12

Constitution
, and the evidence obtained after Deputy Fulfer arrived on the scene 13
should be suppressed. 14

{22 } The majority’s efforts to balance the State’s interests with Defendant’ s 15

interests analyzes Defendant’s interests too narrowly , and in doing so
, omits 16
important considerations that, though more conceptually than directly related to 17
Defendant, are still highly relevant to a reasonableness analysis. 18

{23 } While the majority describes the intrusion on Defendant’s privacy as 19

“minimal
, ” the detention interfered with Defendant’s ability to enter her own home 2020

after parking in her own driveway. T he home is undeniably afforded the highest 1
level of protection by Article II, Section 10

. State v. Nyce , 2006

- NMSC

- 026, ¶ 12, 2

139 N.M. 647, 137 P.3d 587 . While I recognize that this case does not implicate a 3
search or seizure taking place inside the home, it see ms relevant

— indeed, 4
compelling

—

that the intrusion impeded De fendant’s ability to enter her home and 5
move freely within her property . This limitation, however, i s given little 6
consideration by the majority. 7

{24 } Further, and perhaps more importantly, the majority fail s to consider the 8

broade r public interest in requiring that police and their volunteer officers comply 9
with our statutory laws. Cf. State v. Jones , 1998

- NMCA

- 076, ¶ 15, 125 N.M. 556, 10
964 P.2d 117 (acknowledging public interest in law enforcement compliance with 11

DWI notice laws wa s strong enough to warrant reaching potentially moot issue on 12
appeal). As a member of the public, Defendant shares this interest. And, it is this 13
interest that I conclude ultimately tips the balance in Defendant’s favor. In 14
reaching this conclusion, I note that we are tasked, not only with settling the 15
dispute before us, but also with the responsibility of shaping the parameters of 16
police conduct and establishing standards to measure and inform law enforcement 17
practices. S ee State v. Ryon , 2005

- NMSC

- 005, ¶ 11, 137 N.M. 174, 108 P.3d 1032 18
(“Although our inquiry is necessarily fact

- based[,] it compels a careful balancing 19
of constitutional values, which extends beyond fact

- finding to shape the parameters 2021

of police conduct by p lacing the constitutional requirement of reasonableness in 1
factual context[.]” (internal quotation marks, and citation omitted)); Attaway
, 2

1994

- NMSC

- 011, ¶ 9

- 10 (acknowledging that search and seizure jurisprudence 3
reflects appellate efforts to “establish o bjective standards to measure and inform 4
law enforcement practices”). 5

{25 } The Legislature’s intention that individuals be free from arrest by untrained 6

citizens is clear from the plain language of Section 66

- 8

- 124(A), authorizing onl y 7
commissioned, salaried peace officers to arrest

. See Slayton , 2009

- NMSC

- 054, ¶ 8
27 (“ [I] n setting forth the specific arrest procedures in Section 66

- 8

- 124, the 9
Legislature intended to abrogate the common law right to citizens’ arrests for 10
suspected violat ion s of motor vehicle laws.”). Thompson’s testimony made clear 11
that he was aware he lacked statutory authority to stop Defendant . He nonetheless 12
found it appropriate to reach speeds well in excess of the posted speed limit in 13

order to follow Defendant home , shine a spotlight into Defendant’s property, light 14
up her parked car, and prevent her from entering her home. Thompson’s disregard 15
for the statutory limitations to his authority is particularly troubling in light of 16
suggestions throughout the record and briefing that this is not the first occasion on 17

which Thompson has disregarded the limitations of his position

. Indeed, at the 18
suppression hearing, Thompson admitted that on one occas ion, he engaged his 19
emergency lights and pulled over a defendant, though, when asked by defense 2022

counsel, he didn’t recall the stop having been held to be illegal

. Thompson also 1
admitted to having detained another defendant, but when asked by defense counse l 2
whether the evidence was suppressed and the case dismissed because of his “illegal 3
detention,” he responded only that he remembered “some part of the evidence was 4
suppressed.” The majority declined to consider these cases, concluding that 5

defense counsel ’s questions “did not elicit any admissions [

. ] ” Majority Op. ¶ 18

. 6
While the majority is correct that Thompson avoided admitting that the evidence in 7
those cases was suppressed as a result of his wrongful conduct, in both of the cases 8
he admitted to having detained the defendants, conduct for which he had no 9
authority

. Defendant’s and the public’s interest in ensuring that the police and their 10
volunteer officers comply with our statutory laws should be considered when 11
determining whether Thompson’s actions were constitutionally reasonable under 12

Article II, Section 10. 13

{26 } Further, I am not persuaded by the majority’s argument that exigent 14
circumstances weighed in favor of Thompson’s temporary, though unlawful 15

detention of Defendant. Ma jority Op. ¶ 14 . The majority reasons that had 16
Thompson not detained her, the investigation may have been more difficult 17
because Deputy Fulfer would have had to seek an arrest warrant to enter her home, 18
thereby allowing the alcohol in her system to dissipa te. Id. Alternatively, the 19
majority reasons, Defendant may have driven away. Id. The record is devoid of 2023

any evidence that Defendant planned to drive away, and the majority concedes, 1
“Thompson testified that he did not believe Defendant was attempting or i ntending 2

to flee.” Id. ¶ 4 n.1. Further, dissipation of alcohol is but one consideration in the 3
reasonableness analysis, see Nance , 2011

- NMCA

- 048, ¶ 23
, and when considered 4
in light of Defendant’s interest in entering her own home and moving freely within 5
her property and the added interest of requiring the police and its volunteer officers 6
to comply with our statutory law, I believe it is insufficient to render Thompson’s 7
actions reasonable. Thompson should have waited for Officer Fulfur, who, if 8
necessary, could have obtained a warrant. I believe that the balance of factors 9
weighs in favor of affirming the district court’s determination that Thompson’s 10

a rrest of Defendant, which itself was a violation of Section 66

- 8

- 124(A), was 11
unreasonable under Article II, Section 10 and required the suppression of the 12
evidence obtained after Officer Fulfur arrived. Absent suppression, I have little 13

confidence that Tho mpson’s unlawful actions will be deterred. See State v. 14
Santiago , 2009

- NMSC

- 04 5 , ¶ 5, 147 N.M. 76
, 217 P.3d 89 (holding that courts 15
suppress evidence obtained as fruit of an unconstitutional search or seizure to 16

redress and deter violations of the Fourth A mendment). I would affirm the district 17
court’s order granting the motion to suppress. 18

_____________________________ 19 JULIE J. VARGAS , Judge 20