State v. Devigne

• Decision Date: 11 August 1981
• Docket Number: No. 5051,5051
• Citation: 96 N.M. 561,1981 NMCA 88,632 P.2d 1199
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Yves Leon DEVIGNE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1199

632 P.2d 1199

96 N.M. 561

STATE of New Mexico, Plaintiff-Appellee, v. Yves Leon DEVIGNE, Defendant-Appellant.

No. 5051.

Court of Appeals of New Mexico.

Aug. 11, 1981.

Ann Steinmetz, Kennedy & Steinmetz, Albuquerque, for defendant-appellant.

Jeff Bingaman, Atty. Gen., Clare E. Mancini, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Judge.

The two appellate issues involve (1) defendant's confession after a warrantless arrest, and (2) the length of defendant's probation.

Albuquerque detectives, investigating a series of residential burglaries, acquired information that implicated defendant. Some two weeks after acquiring this information, the detectives arrested defendant in his residence, during daylight, without a warrant. Thereafter, defendant made two oral inculpatory statements and one written confession.

Defendant moved to suppress all of his statements. Among the grounds relied on were: (a) that he was not properly advised of his right to remain silent; (b) that he did not waive his right to remain silent; and (c) that his statements were involuntary. After an evidentiary hearing, the trial court refused to suppress the statements on any of these three grounds; these grounds are not involved in this appeal.

Confession After Warrantless Arrest

Defendant also sought to suppress his statements on the basis they were made after a warrantless arrest. Defendant contended that the April, 1980 decision of the United States Supreme Court in Payton v. New York and Riddick v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), required suppression of his statements. The trial court refused to suppress the statements.

Subsequently, upon agreement by the prosecution and defense, the case was tried to the court upon stipulated facts and defendant was found guilty of five residential burglaries. The tape of this trial reveals that defendant's written confession was admitted into evidence over defendant's objection. Inasmuch as other parts of the stipulation have not been included in the appellate record, we do not know whether any use was made of defendant's oral statements. However, the admission of defendant's written confession over defendant's objection, preserved the issue of the applicability of Payton and Riddick.

The trial court's letter rejecting defendant's claim under Payton suggests that a way be found to distinguish that decision. The letter states:

The Payton case to which Defendant refers may be distinguishable from the facts in this case. The Payton decision was six to three, with a very strong dissent being filed. The dissenting Opinion of course is not the law, but it emphatically sets out the possibility of severely hampering the effective law enforcement. The necessity of authorizing a warrantless arrest should be made on the surrounding circumstances of each individual case.

I believe the circumstances in this case should be compared to Payton by our Supreme Court.

At the time of the warrantless arrest, Payton and Riddick had not been decided; those decisions were some six months after the arrest. However, by the time defendant was indicted, they had been decided, and there is no suggestion that the law stated in those decisions does not apply to defendant's case.

As the above-quoted portion of the trial court's letter suggests, Payton and Riddick do require an analysis of the arrest procedures followed in this case. We recognize that the decision is known as Payton v. New York. Heretofore we have referred to both Payton and Riddick because the facts of Riddick are closer to those in defendant's case. Hereinafter we refer to the decision only as Payton ; the following facts, however, are from Riddick.

The victim of two armed robberies identified Riddick in June, 1973; the police learned Riddick's address in January, 1974. In March, 1974, police went to Riddick's residence. When Riddick's young son opened the door, the police saw Riddick. The police entered and arrested Riddick without a warrant.

In defendant's case, the police made a warrantless arrest of defendant, in his residence, some two weeks after obtaining probable cause that defendant had committed some of the burglaries being investigated. Asked if he could have secured an arrest warrant, the detective answered: "We probably could have. Myself and Detective Nagy did not feel it was necessary. We had ample probable cause."

Payton holds:

(T)he Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment (citations omitted), prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest.

The majority opinion in Payton emphasizes that the arrest occurred in the defendant's residence, thus no "public place" arrest was involved. The majority also point out that consent to enter was not involved and that exigent circumstances were not involved. Under Payton the existence of probable cause does not validate the warrantless arrest of a person in that person's residence absent consent to enter or exigent circumstances.

The trial court referred to the strong dissent in Payton. That dissent relied on common-law restrictions to regulate warrantless arrests, in these words:

Today's decision ignores the carefully crafted restrictions on the common-law power of arrest entry and thereby overestimates the dangers inherent in that practice. At common law, absent exigent circumstances, entries to arrest could be made only for felony. Even in cases of felony, the officers were required to announce their presence, demand admission, and be refused entry before they were entitled to break doors. Further, it seems generally accepted that entries could be made only during daylight hours. And, in my view, the officer entering to arrest must have reasonable grounds to believe, not only that the arrestee has committed a crime, but also that the person suspected is present in the house at the time of the entry.

No matter how attractive this dissent may be to the reader, it is not the law.

The majority opinion in Payton was reaffirmed in Steagald v. United States, --- U.S. ----, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), in these words:

The question before us is a narrow one. The search at issue here took place in the absence of consent or exigent circumstances. Except in such special situations, we have consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367 (368-369), 92 L.Ed. 436 (1948). Thus, as we recently observed, "(i)n terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton v. New York, supra (445 U.S.) at 590, 100 S.Ct. 1371 (at 1382), 63 L.Ed.2d 639.

Payton applies to defendant's case; how it applies has yet to be determined.

Under Payton, defendant's warrantless arrest was illegal unless the detectives entered defendant's residence either under exigent circumstances or with consent. Nothing suggests there were exigent circumstances. Whether the detectives entered with defendant's consent is a factual issue which has not yet been determined by the trial court. See State v. Bidegain, 88 N.M. 466, 541 P.2d 971 (1975); State v. Miller, 80 N.M. 227, 453 P.2d 590 (Ct.App.1969).

If the detectives' entry was with consent, then defendant's arrest was legal and there is no basis for suppressing defendant's confession. If, however, there was no consent, the arrest was illegal. If the arrest was illegal, another factual issue is involved; that factual issue is whether defendant's written confession was sufficiently an act of free will to purge the primary taint of the illegal arrest.

In this case there is no appellate claim that defendant was not informed of his constitutional rights before confessing, and no claim as to an involuntariness issue involving the privilege against self-incrimination. The issue involves the Fourth Amendment to the United States Constitution the right of defendant to be secure, in his residence, against an unreasonable seizure. To establish compliance with the Fourth Amendment, the causal chain between the illegal arrest and the subsequent confession must be broken. The causal chain is broken if the confession was sufficiently an act of free will to purge the primary taint.

Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), explains:

The question whether a confession is the product of a free will ... must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse .... The Miranda warnings (of constitutional rights) are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances ... and, particularly, the purpose and flagrancy of the official misconduct are all relevant.... The voluntariness of the statement is a threshold requirement.... And the burden of showing admissibility rests, of course, on the prosecution.

Not having determined whether the detectives' entry was with or without consent, the trial court did not reach the "purge the taint" issue. If the trial court should determine that the arrest was illegal, it must then determine if the taint has been purged. If the taint was not purged, then the confession should have been suppressed. If the confession should have been suppressed, its...