State v. Doe
| Decision Date | 06 September 1978 |
| Docket Number | No. 11983,11983 |
| Citation | 583 P.2d 464,1978 NMSC 72,92 N.M. 100 |
| Parties | STATE of New Mexico, Petitioner, v. John DOE, a child, Respondent. |
| Court | New Mexico Supreme Court |
John Doe (defendant) was adjudged a delinquent child when he was convicted of disorderly conduct in violation of § 40A-20-1, N.M.S.A. 1953 (Repl.1972) and battery upon a police officer in violation of § 40A-22-23, N.M.S.A. 1953 (Repl.1972). He was committed to the Boys' School. The defendant appealed and the Court of Appeals reversed both convictions. The State petitioned for a writ of certiorari. We granted the writ and now affirm in part and reverse in part the decision of the Court of Appeals.
The defendant was a passenger in a car which was stopped by a police patrol after the car had pulled into the parking lot of a liquor store twice. While the officers were questioning the driver, the defendant got out of the car and started arguing with the officers in a loud voice. After several warnings, the defendant was arrested for disorderly conduct. He was then taken to the police station and turned over to the booking officers to be incarcerated. When a routine search was attempted, the defendant struck and kicked the officers searching him.
On appeal the defendant challenged the constitutionality of § 40A-20-1. The Court of Appeals did not reach the constitutionality issue. Instead, it reviewed the evidence and found that there was no probable cause to arrest the defendant because his words and actions did not violate the disorderly conduct statute. The State contends that the Court of Appeals exceeded the permissible scope of review since the defendant did not raise the issue of sufficiency of the evidence to support the defendant's conviction. We disagree with the State's position.
Although sufficiency of the evidence was not challenged in the lower court nor raised on appeal, the Court of Appeals may clearly consider such a question if it constitutes "fundamental error."
The doctrine of fundamental error is resorted to in criminal cases only if the innocence of the defendant appears indisputable, or if the question of his guilt is so doubtful that it would shock the conscience to permit his conviction to stand.
State v. Torres, 78 N.M. 597, 599, 435 P.2d 216, 218 (Ct.App.1967); State v. Sedillo, 81 N.M. 47, 462 P.2d 632 (Ct.App.1969), Cert. denied, 81 N.M. 40, 462 P.2d 625 (1969).
The Court of Appeals found as a matter of law that the defendant's words and actions did not constitute disorderly conduct. Section 40A-20-1 states:
Disorderly conduct. Disorderly conduct consists of:
A. engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace . . . .
The defendant was a passenger in the car when the officers began questioning the driver. He started asking in a loud voice why they were being stopped and harassed. He was angry and had his fist clenched, but he made no gesture or movement toward the officers. There was no evidence that a crowd was gathering, that the defendant was inciting belligerent behavior, or that the defendant was causing consternation or alarm. The statute contemplates conduct which tends to disturb the peace. As set forth in State v. Florstedt, 77 N.M. 47, 49, 419 P.2d 248, 249 (1966), a "breach of the peace" is " '(A) disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community. . . .' " See also, State v. Oden, 82 N.M. 563, 484 P.2d 1273 (Ct.App.1971).
Here, no act of violence was attempted. The officer stated that he arrested the defendant because he was getting angry "and with his actions I didn't know that at any time he might go ahead and become combative." But at the time of the arrest the defendant was not "combative," nor was it apparent that his words or actions would produce violence or disturb the peace. Norwell v. City of Cincinnati, 414 U.S. 14, 16, 94 S.Ct. 187, 188, 38 L.Ed.2d 170 (1973) states, "(O)ne is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer." We feel that this principle applies here and agree with the Court of Appeals that there was no probable cause for the arrest and that there was insufficient evidence to sustain the conviction.
However, we cannot agree with the second conclusion reached by the Court of Appeals. The Court of Appeals held that the defendant was not guilty of battery upon a police officer under § 40A-22-23. Section 40A-22-23 provides:
Battery upon a peace officer is the unlawful, intentional touching or application of force to the person of a peace officer while he is in the lawful discharge of his duties, when done in a rude, insolent or angry manner.
The Court of Appeals reasoned that since the arrest was illegal the search was illegal, and the officers were not acting in the "lawful discharge of their duties."
Even if the arrest was illegal, we cannot condone the use of force in resisting every subsequent act made in good faith by a law enforcement officer. In this case, the search was conducted by booking officers according to regular jail procedures. There is no evidence that the booking officers were acting in bad faith or using unreasonable force. Police officers acting in good faith, although mistakenly, should be relieved of the threat of physical harm.
Self-help measures undertaken by a potential defendant who objects to the legality of the search can lead to violence and serious physical injury. The societal interest in the orderly settlement of disputes between citizens and their government outweighs any individual interest in resisting a questionable search. United States v. Ferrone, 438 F.2d 381, 390 (3rd Cir. 1971), Cert. denied, 402 U.S. 1008, 91 S.Ct. 2188, 29 L.Ed.2d 430 (1971). Accord, State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977); State v. Miller, 282 N.C. 633, 194 S.E.2d 353 (1973). One can reasonably be asked to submit peaceably and to take recourse in his legal remedies.
We hold that a private citizen may not use force to resist a search by an authorized police officer engaged in the performance of his duties whether or not the arrest is illegal. The question remains whether the use of force in...
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