State Of N.M. v. Harrison, 31,224.

Citation2010 NMSC 038, 148 N.M. 500, 238 P.3d 869
Case DateJuly 28, 2010
CourtSupreme Court of New Mexico

148 N.M. 500
238 P.3d 869
2010 NMSC 038

STATE of New Mexico, Plaintiff-Respondent,
David HARRISON, Defendant-Petitioner.

No. 31,224.

Supreme Court of New Mexico.

June 8, 2010.
Rehearing Denied July 28, 2010.

238 P.3d 870
238 P.3d 871

Hugh W. Dangler, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Respondent.

Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, L.L.P., Richard W. Hughes, Santa Fe, NM, for Amicus Curiae Pueblo of Santa Ana.

238 P.3d 872

Marcelino R. Gomez, Paul M. Spruhan, Window Rock, AZ, for Amicus Curiae Navajo Nation.

MAES, Justice.

{1} In this appeal, we must determine whether a state, county, or local peace officer, 1 who is not cross-commissioned with the Bureau of Indian Affairs (BIA) or an Indian nation, tribe, or pueblo, see NMSA 1978, § 29-1-11 (2005), has the authority to pursue an Indian into Indian country to investigate an off-reservation crime committed in the officer's presence. We conclude that state officers have the authority to enter Indian country to investigate off-reservation crimes committed by Indians, so long as their investigation does not infringe on tribal sovereignty by circumventing or contravening a governing tribal procedure. Because the state officer's investigation in this case did not circumvent or contravene any governing tribal procedures codified in the Navajo Nation Code, we affirm the conviction of David Harrison (Defendant) for driving while intoxicated (DWI) in violation of NMSA 1978, Section 66-8-102 (1953, as amended through 2005).


{2} On August 31, 2005, at approximately 10:30 a.m., Emerson T. Charley, Jr., a deputy with the San Juan County Sheriff's Office, was on patrol duty on County Road 6675 in San Juan County, New Mexico. Deputy Charley was driving east on the county road when he noticed a westbound vehicle traveling at a high rate of speed. Using his radar, Deputy Charley determined that the vehicle was traveling fifty-six miles per hour in a thirty-five miles per hour zone. Deputy Charley engaged the emergency lights on his patrol car, turned around, and followed the vehicle “to let the driver know that [he] was actually going to try to stop him.” After the vehicle failed to yield, Deputy Charley activated and changed the tone of his siren to get the driver's attention. However, the vehicle continued driving westbound, crossing a bridge that separates San Juan County from the Navajo Reservation. While crossing the bridge, Deputy Charley observed a large clear bottle containing yellow liquid being tossed out of the passenger side window. The vehicle finally stopped one-third of a mile into the Navajo Reservation.

{3} Deputy Charley approached the vehicle and noticed that the driver, Defendant, had blood-shot, watery eyes and smelled moderately of alcoholic beverage. Deputy Charley asked Defendant what he had thrown out of the passenger side window, and Defendant responded that it was a bottle of Budweiser. At this point, Deputy Charley asked Defendant to exit the vehicle and perform a series of field sobriety tests. First, Defendant performed the walk and turn test, during which Deputy Charley observed two clues of impairment-Defendant miscounted and used his arms for balance. Second, Defendant performed the one-legged stand test, during which Deputy Charley again observed two clues of impairment-Defendant miscounted and dropped his foot three times. On the basis of his training and experience as a patrol officer, Deputy Charley determined that Defendant had been driving while intoxicated.

{4} At some point during the stop, Deputy Charley learned that Defendant was a member of the Navajo Nation. Deputy Charley knew that he had no authority to arrest a Navajo Nation member on the Navajo Reservation, so he contacted the Navajo Police Department for assistance. However, the Navajo Police Department was unable to provide assistance, and Deputy Charley testified that “the only thing [he] could do was have [Defendant] try to find a ride. [Defendant] attempted to make a phone call, wasn't able to find somebody, and he decided he was going to walk back to some family's residence.”

{5} Deputy Charley subsequently secured an arrest warrant, which was executed in compliance with Navajo Nation Code requirements.

238 P.3d 873

Defendant was charged by criminal complaint in state court with a fourth or subsequent offense of DWI contrary to Section 66-8-102. Following a jury trial, Defendant was convicted of DWI and sentenced to three years of imprisonment.

{6} Defendant appealed from the judgment of the trial court to the Court of Appeals, claiming that “the evidence of his performance on field sobriety tests should have been suppressed because they were administered by a state police officer who is not cross-commissioned with the Bureau of Indian Affairs (BIA) or the Navajo Nation, Defendant is Navajo, and the tests were administered following a stop on the Navajo Nation.” State v. Harrison, 2008-NMCA-107, ¶ 1, 144 N.M. 651, 190 P.3d 1146. The Court of Appeals acknowledged that Deputy Charley lacked the authority to arrest Defendant on the Navajo Reservation, but nonetheless concluded that he “had authority to stop Defendant on the Navajo Reservation to investigate the traffic offense he observed off the Navajo Reservation and to determine if Defendant was a member of the Navajo Nation.” Id. ¶¶ 8, 11; see United States v. Patch, 114 F.3d 131, 133-34 (9th Cir.1997). The Court further concluded that the field sobriety tests did not violate the Fourth Amendment to the United States Constitution because Defendant performed the tests voluntarily. Harrison, 2008-NMCA-107, ¶ 14, 144 N.M. 651, 190 P.3d 1146. Accordingly, the Court held that Defendant's jurisdictional claim was moot and affirmed Defendant's conviction and sentence. Id. ¶¶ 14, 16.

{7} We granted Defendant's petition for writ of certiorari pursuant to NMSA 1978, Section 34-5-14(B) (1972) and Rule 12-502 NMRA to determine whether a state officer, who is not cross-commissioned with the BIA or the Navajo Nation, has the authority to enter the Navajo Reservation and investigate an off-reservation crime committed by a member of the Navajo Nation. State v. Harrison, 2008-NMCERT-008, 145 N.M. 255, 195 P.3d 1267.


{8} Defendant committed the crime of DWI on both state and tribal land. However, Deputy Charley acquired the evidence supporting Defendant's DWI conviction from a traffic stop and investigation conducted exclusively in Indian country. 2 Defendant and Amici Curiae, the Navajo Nation and the Pueblo of Santa Ana, concede that Deputy Charley had the authority to stop Defendant in Indian country and detain him pending the arrival of the Navajo police. However, they argue that Deputy Charley exceeded the scope of his authority by conducting a brief criminal investigation in Indian country, which included the administration of field sobriety tests. Additionally, the Pueblo of Santa Ana claims that Deputy Charley's administration of field sobriety tests constituted a de facto arrest, which violated tribal sovereignty under New Mexico law.

{9} The authority of state officers to investigate off-reservation crimes in Indian country is a question of law, which we review de novo. See State v. Ochoa, 2008-NMSC-023, ¶ 10, 143 N.M. 749, 182 P.3d 130 (2008) (“The application and interpretation of law is subject to a de novo review.”). Although our state judiciary has addressed this issue before, our analysis is also guided by federal law, because “the laws of the United States ‘shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby....’ ” State v. Romero, 2006-NMSC-039, ¶ 7, 140 N.M. 299, 142 P.3d 887 (quoting U.S. Const. art. VI, cl. 2); see also Cohen's Handbook of Federal Indian Law § 5.01[1] (Nell Jessup Newton ed. 2005) (“The supremacy clause ensures that laws regulating Indian affairs and treaties with tribes supersede conflicting state laws or state constitutional provisions.”).

A. Preservation

{10} “To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked....” Rule 12-216(A) NMRA. “Matters

238 P.3d 874

outside the record present no issue for review.” State v. Smith, 92 N.M. 533, 536, 591 P.2d 664, 667 (1979). As the appellant, it is Defendant's burden to provide this Court with a brief statement “explaining how the issue [on appeal] was preserved in the court below, with citations to authorities, record proper, transcript of proceedings or exhibits relied on.” Rule 12-213(A)(4) NMRA. “When an issue is not preserved in this manner, our review generally is limited to consideration of jurisdictional questions, issues of general public interest, or matters involving fundamental error or fundamental rights of a party.” State v. Foster, 1999-NMSC-007, ¶ 47, 126 N.M. 646, 974 P.2d 140; see also Rule 12-216(B).

{11} Defendant's brief-in-chief fails to include the requisite statement regarding preservation. However, the trial transcript reveals that, at the beginning of the trial, Defendant requested and received a continuing objection on his “Motion to Suppress Evidence based on the fact that [Defendant] was pulled over on the reservation.” The record proper and trial transcript contain no further information regarding Defendant's suppression motion or the trial court's ruling. Thus, on the record before us, we do not know what evidence Defendant sought to suppress, the basis for the trial court's ruling, or whether the challenged evidence ultimately was presented to the jury. In the absence of such information, we are compelled to conclude that Defendant's claim was not preserved for appellate review.

{12} Nonetheless, we exercise our discretion under Rule 12-216(B) “to consider an...

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