State v. Avila, A-1-CA-40656

CitationA-1-CA-40656
Case DateNovember 21, 2022
CourtCourt of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellant,
v.

UVALDO AVILA, Defendant-Appellee.

No. A-1-CA-40656

Court of Appeals of New Mexico

November 21, 2022


Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Lucy Solimon, District Judge

Hector H. Balderas, Attorney General

Emily Bowen, Assistant Attorney General

for Appellant

Bennett J. Baur, Chief Public Defender

for Appellee

MEMORANDUM OPINION

J. MILES HANISEE, CHIEF JUDGE

{¶1}This matter was submitted to the Court on the brief in chief pursuant to the Administrative Order for Appeals in Criminal Cases from the Second, Eleventh, and Twelfth Judicial District Courts in In re Pilot Project for Criminal Appeals, No. 2022-002, effective November 1, 2022. Having considered the brief in chief, concluded the briefing submitted to this Court provides no possibility for reversal,

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and determined that this case is appropriate for resolution on Track 1 as defined in that order, we affirm for the following reasons.

{¶2}The State appeals an order suppressing evidence, arguing both that Defendant's seizure was supported by the public servant doctrine and, in the alternative, that the evidence suppressed was admissible pursuant to the attenuation doctrine. [BIC 6-13, 23-29] In asserting that the conduct of the arresting officer in this case was justified by the public servant doctrine, the State relies upon the fact that a car Defendant was driving "was associated with a missing person report." [BIC 2] The State also relies upon the arresting officer's testimony that he initially approached Defendant, not because he suspected criminal activity, but solely "to ascertain the nature of the circumstances" surrounding the car and the missing person report. [BIC 8]

{¶3}We note, however, that the district court found that this testimony was contradicted by a video recording of the officer's encounter with Defendant, that the officer's actions were not consistent with his professed motives, and that the officer's testimony lacked credibility. [RP 102, 105, 121] This Court is in no position to assess credibility determinations made below. See State v. Evans, 2009-NMSC-027, ¶ 37, 146 N.M. 319, 210 P.3d 216 (noting that an appellate court is "unable to view the witness's demeanor or . . . manner of speech, and therefore [is] not in a position to evaluate many of the aspects of witness credibility that the trier of fact

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may evaluate"); see State v. Yazzie, 2019-NMSC-008, ¶ 14, 437 P.3d 182 (noting that where "video evidence conflicts with other evidence, an appellate court must defer to the district court's factual findings if supported by evidence in the record"). As a result, we do not substitute our judgment for that of the district court or reweigh its credibility determinations. State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (explaining that this court defers "to the district court when it weighs the credibility of witnesses and resolves conflicts in witness testimony").

{¶4} Because the district court's findings regarding witness credibility in this case are beyond the scope of this Court's review, we turn to the State's arguments that other evidence supported application of the public servant doctrine. In particular, the State asserts that the district court erred because "the missing person report was, in and of itself, sufficient to support a brief seizure." [BIC 1] In support of that assertion, the State directs our attention to out-of-state authority relying upon the existence of missing person reports to find that police officers were engaged in community caretaking rather than investigating crime. [BIC 9-10]

{¶5} It seems self-evident that community caretaking is a broad enough concept to encompass efforts to locate missing persons. Nonetheless, we are not persuaded that an officer's knowledge that an unidentified person has been reported as missing will, as a matter of law and without more, justify privacy intrusions pursuant to the public servant doctrine. Instead, our cases have consistently held that the public servant

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doctrine applies to cases in which the actions of law enforcement are motivated by a concern for public safety rather than investigating crime. See Schuster v. N.M. Dep't of Tax'n & Revenue, 2012-NMSC-025, ¶ 27, 283 P.3d 288 (stating that action by "an officer in his or her role as a community caretaker is reasonable as long as the officer is motivated by a desire to offer assistance and not investigate"); State v. Sheehan, 2015-NMCA-021, ¶ 13, 344 P.3d 1064 (same). Thus, we are not persuaded that the existence of a missing person report, "in and of itself," was sufficient to bring the officer's conduct in this case within the public servant doctrine, and an examination of that officer's actions remains necessary. [BIC 1]

{¶6} Turning to whether those actions were motivated by a concern for public safety, the State suggests that the district court improperly relied upon the officer's failure to read the missing person report before approaching Defendant. [BIC 10-11] The State suggests that the district court unreasonably disregarded the officer's reasonable explanation that "it is difficult and unsafe for him to read while driving." [Id.] The district court's findings on this point note that the officer testified he stopped Defendant because he had been driving a vehicle associated with a missing person report. [RP 111]...

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