This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. A-1-CA-37556 4 DAVID CARTER, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 Brad Dalley, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Gregory B. Dawkins, Assi stant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VANZI, Judge. 17
{1} Defendant appeals his conviction of battery upon a peace officer following the 18 entry of a conditional plea agreement. [DS 2; RP 94] In his docketing statement, 192 Defendant challenged the deni al of his motion to suppress evidence and suggested that 1 he was acting in self defense when he hit a deputy. [DS 2, 4] This Court issued a 2 notice of proposed summary disposition, proposing to affirm with regard to the district 3 court’s denial of his motion to suppress evidence based upon the “new crime” 4 exception to the exclusionary rule. See State v. Tapia , 2018-NMSC-017, ¶ 19, 414 5 P.3d 332 (describing New Mexico’s adoption of the “new crime exception” to the 6 exclusionary rule); see also, e.g. , State v. Travison B. , 2006-NMCA-146, ¶ 9, 140 7 N.M. 783, 149 P.3d 99 (noting that “societal interests dictate the protection of the 8 officer from attack by someone who may que stion, albeit reasonably, the legality of 9 the officer’s actions”). Similarly, we propos ed that the question of whether he could 10 have viably asserted self defense had no b earing upon the district court’s denial of his 11 motion to suppress evidence and therefore provided no basis for reversal. [CN 2, 3] 12 Defendant has filed a memorandum in opposition to that proposed disposition. 13
{2} In that memorandum, Defendant continue s to assert that evidence should have 14 been suppressed because he was illegally stopped and that he was acting in self 15 defense when he hit the deputy. [MIO 2- 5] Having duly considered that memorandum, 16 we are unpersuaded. State v. Mondragon , 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 17 P.2d 1003 (explaining that the repetition of earlier arguments does not meet a party’s 18 burden to come forward and specifically point out errors of law or fact in a notice of 19 proposed summary disposition). 203 {3} Regardless of the legality of the deputy’s actions, Defendant did not have a 1 license to physically attack a law enforcement officer. See State v. Doe , 2 1978-NMSC-072, ¶ 11, 92 N.M. 100, 583 P.2d 464 (holding that “a private citizen 3 may not use force to resist a search by an authorized po lice officer engaged in the 4 performance of his duties whether or not the arrest is illegal”). Under such 5 circumstances, the vindication of Defendant ’s constitutional rights would “lie in a 6 civil action, not in a physical attack.” Travison B. , 2006-NMCA-146, ¶ 9. And, more 7 directly to the point, such an attack c onstitutes “new criminal activity that is not 8 subject to the exclusionary rule.” Id. 9
{4} With regard to any evidence that would have justified a self defense instruction, 10 we reiterate that the district court’s ru ling on the motion to suppress evidence was not 11 based upon any assessment of hi s self defense argument. Tothe extent that Defendant 12 now asserts that the district court should have directed a verdict in his favor on the 13 basis of self defense, we note that he would have borne the burden of persuading a 14 jury that the deputy used excessive force “measured from th e perspective of an 15 objectively reasonable officer.” See State v. Ellis , 2008-NMSC-032, ¶ 24, 144 N.M. 16 253, 186 P.3d 245. Based upon the facts summarized in Defendant’s docketing 17 statement and memorandum in opposition to summary disposition, it does not appear 18 that Defendant would have b een entitled to a directed verdict on the question of self 19 defense. And, in any event, the sole que stion placed before this Court by Defendant’s 204 conditional plea is whether the district c ourt properly denied his motion to suppress 1 evidence. [RP 94] 2
{5} Thus, for the reasons stated here and in our notice of proposed summary 3 disposition, we affirm the judgment and sentence of the district court. 4
{6} IT IS SO ORDERED. 5

__________________________________ 6 LINDA M. VANZI, Judge 7 WE CONCUR: 8

_________________________________ 9 M. MONICA ZAMORA, Chief Judge 10

_________________________________ 11 JENNIFER L. ATTREP, Judge 12