State v. Lyon

• Decision Date: 01 August 1985
• Docket Number: No. 8215,8215
• Citation: 706 P.2d 516,1985 NMCA 82,103 N.M. 305
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Charles E. LYON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 516

706 P.2d 516

103 N.M. 305

STATE of New Mexico, Plaintiff-Appellee, v. Charles E. LYON, Defendant-Appellant.

No. 8215.

Court of Appeals of New Mexico.

Aug. 1, 1985.

Certiorari Denied Sept. 13, 1985.

Armand T. Carian, Albuquerque, for defendant-appellant.

Paul G. Bardacke, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BIVINS, Judge.

Convicted of driving under the influence (DWI) by a metropolitan court jury, defendant appealed to the district court for a trial de novo, where the district court, without a jury, convicted defendant. He appeals that conviction, raising two issues:

1. Whether the district court erred in refusing to suppress the results of defendant's breath alcohol test when defendant's warrantless misdemeanor arrest was made by an officer who did not observe defendant driving under the influence; and

2. Whether the district court improperly denied defendant a trial by jury.

We affirm.

1. The warrantless misdemeanor arrest.

Defendant argues that the results of his breath alcohol test should have been suppressed because: (1) there was insufficient basis for Officer Schultz to make an investigatory stop of defendant's vehicle; and (2) the misdemeanor for which defendant was arrested was not committed in the presence of Officer Tellez, the arresting officer. We first set forth the facts giving rise to these contentions.

Shortly before midnight on April 25, 1984, defendant drove his vehicle in the Coronado Shopping Center parking lot near the Sears' Automotive Center, where the Albuquerque police had positioned their "Batmobile" for convenience. Twice defendant drove close to the Batmobile in which Officer Schultz was located. On both occasions Schultz observed a beer bottle between defendant's legs.

Schultz stopped defendant and cited him for an open container violation under an Albuquerque ordinance. Because he could not transport defendant in the canine unit vehicle and expose defendant to danger from the dog, and also because he needed to remain free to service the canine unit, Schultz radioed for assistance. Officer Tellez with the DWI unit responded. After explaining the situation to Tellez, Schultz remained, observing two of the field sobriety tests conducted by Tellez, which defendant failed. Schultz also watched defendant's passenger who was acting "smart-alecky, cocky," and "loud," because of his concern for "officer safety."

After conducting the field sobriety tests, Tellez arrested defendant in the presence of Schultz, and transported defendant to the Batmobile for a breath alcohol test, while Schultz helped park defendant's car. Schultz observed the administration of the breath alcohol test, which defendant also failed.

(a) The investigatory stop.

The stop which Officer Schultz made was an investigatory stop; therefore, probable cause for stopping the car is not at issue. State v. Galvan, 90 N.M. 129, 560 P.2d 550 (Ct.App.1977). The inquiry is whether there were appropriate circumstances which would justify the stop. "Appropriate circumstances" is a reasonable suspicion that the laws have been violated. "Reasonable suspicion" is judged by an objective standard: would the facts and inferences available to the officer warrant the officer, as a person of reasonable caution, to believe the action taken was appropriate. The officer must be able to articulate specific facts and reasonable inferences drawn from those facts. Id.

On appeal, the state argues that the investigatory stop was justified because Officer Schultz could have had a reasonable suspicion that the defendant was driving while intoxicated. Defendant, on the other hand, argues a lack of reasonable grounds to stop him in a private parking lot because the open container charge (dismissed in metropolitan court) applied only to public streets. Where there are reasonable grounds supporting a warrantless arrest for the commission of a misdemeanor, the arrest is not invalidated because the officer gave the wrong reasons for the arrest; the proper misdemeanor charge must, however, be known to the officer at the time of the arrest. State v. Luna, 93 N.M. 773, 606 P.2d 183 (1980). A review of the evidence shows that Officer Schultz was justified in making an investigatory stop.

Defendant was seen driving into the Sears parking lot shortly before midnight. Defendant twice drove close to the Batmobile in which Officer Schultz was positioned. Each time the defendant was observed driving by, he had a beer bottle between his legs. At that hour only the police vehicles and the defendant were in the parking lot. Officer Schultz paid special attention to defendant's vehicle under the circumstances because individuals would occasionally approach the Batmobile to cause trouble. After driving close to the Batmobile twice, defendant drove around the Sears Automotive Center. The Automotive Center was closed. Defendant continued driving around to the Sears store, which was also closed. Officer Schultz then stopped defendant. At that point, the officer observed that defendant's speech was slurred, his eyes were watery and bloodshot and there was a moderate odor of alcohol coming from his person. The foregoing evidence was sufficient to induce a reasonably cautious person to believe that an investigatory stop of the defendant's vehicle was appropriate.

(b) The requirement of presence.

The misdemeanor arrest rule in New Mexico provides that a police officer may make a warrantless arrest for a misdemeanor offense if the misdemeanor is committed in the officer's presence. Luna; City of Roswell v. Mayer, 78 N.M. 533, 433 P.2d 757 (1967); Cave v. Cooley, 48 N.M. 478, 152 P.2d 886 (1944). A warrantless arrest may also be made under other circumstances. See NMSA 1978, Sec. 66-8-125.

In State v. Calanche, 91 N.M. 390, 574 P.2d 1018 (Ct.App.1978) this court upheld a warrantless arrest made by a police officer pursuant to NMSA 1953, Section 64-22-8.2, (2d.Repl.Vol.9, pt.2) (now Section 66-8-125(A)(1) of a person at the scene of the accident, either at the scene or at another place, if the arrest is made with reasonable promptness. Section 66-8-125 does not apply to the case before us because there was no motor vehicle accident.

The state, in this case, acknowledges that arresting Officer Tellez did not actually observe the defendant driving his vehicle but argues that the officer in whose presence the offense was committed participated in the arrest to such a degree that the requirements of the rule were satisfied even though another officer technically placed defendant under arrest. In the alternative, the state urges this court to adopt the "police-team" qualification of the presence requirement. Under this qualification, a member of the police-team may arrest for a misdemeanor committed in the presence of another member of the police-team when their collective perceptions are combined to satisfy the presence requirement. Henry v. Commissioner of Public Safety, 357 N.W.2d 121 (Minn.App.1984). To accept the state's contention that Officer Schultz' participation was of such degree to satisfy the presence requirement, argues in effect for the adoption of the "police-team" qualification. Accordingly, we examine this qualification.

The purpose of the presence requirement is to prevent warrantless arrests based on information from third parties. State v. Jensen, 351 N.W.2d 29 (Minn.App.1984). Courts in other jurisdictions have developed the police-team qualification to the presence requirement by permitting officers working together to combine their collective perceptions so that the requirement is deemed satisfied even though the arresting officer does not witness all the elements of the offense. The arresting officer is viewed as the most reliable informant, but is not considered a third person. Id.

Recently, some states have eliminated the presence requirement from their arrest statutes by removing the felony-misdemeanor distinction. The courts in these states have stressed that there is sometimes little correlation between the designation of a crime as either a felony or a misdemeanor and its heinousness or the attendant severity of its punishment. Prior decisions have eliminated the presence requirement for felonies as long as there was probable cause for the arrest. See, e.g., State v. Deltenre, 77 N.M. 497, 424 P.2d 782 (1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967). Therefore, the courts felt justified in extending the police-team qualification in order to legalize misdemeanor arrests. Comment, The Presence Requirement and the "Police-Team" Rule in Arrest for Misdemeanors, 26 Wash. & Lee L.Rev. 119 (1969); Robinson v. State, 4 Md.App. 515, 243 A.2d 879 (1968).

Some states have retained the felony-misdemeanor distinction in their statutes, but allow an arrest without the element of presence, if the officer has reasonable grounds for believing that a misdemeanor has been committed. Howes v. State, 503 P.2d 1055 (Alaska 1972). Other states have viewed the qualification as a legal fiction based on the theory that a team is one body, i.e., what is done in the presence of one is done in the presence of all. The use of police radio supports this fiction by creating a proximity of awareness, purpose, and reliance between those officers in communication. See Comment; Robinson; Prosser v. Parsons, 245 S.C. 493, 141 S.E.2d 342 (1965). Still, other states have adopted this qualification on the basis that it does not infringe on the substantial rights of the defendant. State v. Standish, 116 N.H. 483, 363 A.2d 404 (1976).

While elimination of the felony-misdemeanor distinction may merit consideration, this court must follow rules adopted by the supreme court. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973). Nevertheless, we do no violence to those rules to expand on the requirement of "in the presence of", particularly in light of recent developments in this...