Albuquerque Criminal Lawyer Blog

In the case of State v. Nance, the New Mexico Court of Appeals considered whether a warrantless home arrest in a DWI case was unconstitutional and found that under the circumstances of this case, it was not.

Steve Chavez was leaving a business when he saw Koulungjim Nance's vehicle collide with his own in a parking lot. Chavez confronted Nance upon which Nance returned to his vehicle and drove away. During this encounter, Chavez detected a strong odor of hard liquor on Nance's breath. Chavez called 911 and drove after Nance.

Chavez observed Nance swerving into oncoming traffic, pulling out in front of traffic, speeding, and running stop signs. Within a few minutes, Nance arrived at his home with Chavez and police arriving soon after. The officers tried to make contact with Nance by knocking on the door and identifying themselves. Initially, Nance did not respond but 15 minutes later, he came out of the house. At that time, the officers administered a breathalyzer test registering scores of 0.29 and a 0.27.

The facts in Nance's trial were undisputed. The only issue before the district court was the suppression of the breath score for the warrantless home arrest. The district court agreed with the defense finding the warrantless home arrest unlawful under the 4th Amendment thereby suppressing the breath score.

In its ruling, the district court cited the1994 10th Circuit case of Howard v. Dickerson as follows; "minor offenses do not justify warrantless home arrests." The district court suggested that DWI was a minor offense for which there was no relevant exception under the misdemeanor arrest rule.

The Court of Appeals took exception to the characterization of DWI as a minor offense citing New Mexico Supreme Court precedent from the 2010 case of City of Santa Fe v. Martinez, '[t]he crime of DWI as defined by our Legislature is not a 'minor crime...compelling public interest in eradicating DWI occurrences and [their] potentially deadly consequences." As such, the Court justified the treatment of DWI as a felony for purposes of search and seizure analysis focusing on the exigent circumstances exception for warrantless searches.

The Court then addressed whether exigent circumstances existed sufficient to justify the warrantless encounter with Nance. Citing the 1997 New Mexico Supreme Court case of State v. Gomez, the Court defined exigent circumstances as "an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect, or destruction of evidence."

The Court cited a number of cases most notably the 1986 New Mexico Court of Appeals case of State v. Copeland for the proposition that the possible dissipation of alcohol levels does meet the exigent circumstances test. Copeland involved a hit and run accident that killed a police officer. The investigating officers traced the defendant back to a hotel room where they forcibly entered his room and made the arrest. In that case, the court found that "the alcohol thought to be in defendant's system would be metabolizing" and that "based on the destruction of evidence rationale alone, the trial court was warranted in finding exigent circumstances."

The Court did not go so far as to suggest that dissipation of alcohol by itself is sufficient grounds to justify a warrantless home entry, the court declined to read it that way because the Copeland case had an exceptional set of facts. Instead, the Court found that DWI arrests were still constrained by the reasonableness requirements in the probable cause inquiry of felony warrantless arrests.

In addressing the reasonableness requirement, the Court noted that the police did not enter Nance's house, did not draw their weapons, and did not search the premises but simply stood outside of his house for 15 minutes. The Court found this to be reasonable as only a "slight intrusion was well tailored to the exigency in this case."

In sum, the Court concluded that there were both exigent circumstances present for the warrantless encounter and that the warrantless encounter was reasonable under the circumstances. The court did not determine whether police would have been justified in entering Nance's house without a warrant under these conditions as it was unnecessary for the ruling. It is to be expected that this will be the next line of inquiry as law enforcement attempt to stretch the boundaries of this ruling.

Collins & Collins, P.C.
Albuquerque Attorneys

In the recent case of State v. Olson, the New Mexico Court of Appeals addressed a police officer's authority to question a person about unrelated crimes after pulling him over for a traffic violation. The Court concluded, consistent with recent New Mexico Supreme Court search and seizure case-law, that questioning following a traffic stop must be limited in scope to issues related to the traffic stop itself.

A little after midnight on December 2007, the subject officer was parked in his patrol car in an alley behind a convenience store in Albuquerque. He then saw the defendant, Gunnar Olson, drive his car into the alley, then back out and continue driving. The officer found the behavior suspicious "giv[ing him] the impression like, oh no, the police." The officer followed Olson and pulled him over for a traffic stop based on an expired temporary tag.

Upon approaching the vehicle, the officer found that Olson had a male transvestite known to be a prostitute by the officer. The officer asked Olson to exit the vehicle to question him about the passenger. Olson admitted the passenger was a prostitute but stated that he was just giving him/her a ride. While questioning Olson, the officer noticed and began questioning him on his fanny pack. The officer then ordered Olson to place the fanny pack on the hood of the car. Upon request by the officer and as Olson was retrieving his ID from his fanny pack, the officer asked if he could take a look into the pack to make sure there were no weapons. Upon inspection, the officer found several crack pipes. Finally, the officer asked Olson where his crack was and Olson admitted it was in his front pocket.

Olson was charged with possession of a controlled substance. He moved for suppression of the evidence as an unlawful search and seizure under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution.

The Court applied the two-part test set forth in the recent 2011 New Mexico Supreme Court Case State v. Leyva to determine the reasonableness of the officer's questioning during a traffic stop. First, the stop must be justified from its inception (expired tags in this case.) Second, all questions asked during the investigation of a traffic stop must be "reasonably related to the initial reason for the stop." There are few and limited exceptions to this requirement. Citing Leyva, the Court stated that "[u]nrelated questions are permissible when supported by independent reasonable suspicion, for reasons of officer safety, or if the interaction has developed into a consensual encounter."

The court further wrote that to allow a police officer "carte blanche ... to stop any vehicle late at night whenever he saw a driver and a known prostitute in the vehicle, to require the driver to exit the vehicle, and to question the driver and the passenger regarding their relationship" would be "tantamount to a seizure of a driver based on the mere presence of a passenger known to have committed a past criminal act ... such a seizure ... or extended detention ... is closer to arbitrary or harassing police conduct than to society's need for reasonable law enforcement investigative activity."

The Court, as in Leyva, recognized that Article II, Section 10 of the New Mexico Constitution provides greater protections than does the federal law under the 4th Amendment. It was admitted by the officer that the stop was based upon the expired tags. Though interesting, it was thus unnecessary to address the issue of stopping every person in the presence of a known prostitute, or any other criminal for that matter. Questioning about the prostitute was well beyond the scope of the initial stop, the expired tags. So the State does not get to the officer safety justification of searching the fanny pack as this followed upon the heels of illegal questioning.

Collins & Collins, P.C.
Albuquerque Attorneys