State v. Nemeth

• Citation: 130 N.M. 261,23 P.3d 936,2001 NMCA 29
• Decision Date: 20 April 2001
• Docket Number: No. 20,637.,20,637.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Sandra NEMETH, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

23 P.3d 936

130 N.M. 261

2001 NMCA 29

STATE of New Mexico, Plaintiff-Appellee, v. Sandra NEMETH, Defendant-Appellant.

No. 20,637.

Court of Appeals of New Mexico.

April 20, 2001.

Patricia A. Madrid, Attorney General, Margaret E. McLean, Assistant Attorney General, Santa Fe, NM, for Appellee.

Glenn Smith Valdez, Glenn Smith Valdez Law Office, Albuquerque, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} In this appeal we address the issue whether a non-consensual warrantless entry by police officers into a private residence on a possible suicide call is constitutionally permissible under a community caretaker doctrine. We also examine whether the entry, which preceded a battery on one of the police officers, was within the lawful discharge of a police officer's duties.

{2} Defendant Sandra Nemeth appeals a jury's verdict finding her guilty of battery upon a peace officer occurring in Defendant's home after the officers' warrantless entry. Defendant argues that the trial court erred in denying her motion to dismiss or, in the alternative, to suppress evidence relating to the alleged battery, and in refusing her tendered jury instructions. We hold the police officers' actions to be constitutional under the Fourth Amendment, consistent with the New Mexico Constitution, and within the lawful discharge of their duty.

BACKGROUND

{3} Mike Wells, whom Defendant had been dating, called 911 to report that Defendant had just threatened to harm herself in the course of an argument with him. The dispatcher asked Officer Lori Phelps of the Aztec police department to investigate a possible suicide attempt. Deputy Terry Eagle of the San Juan County sheriff's department heard the call and volunteered to assist.

{4} Eagle arrived at Defendant's home and switched on his video camera. The camera recorded the scene outside of the home. Through a microphone attached to his uniform, Eagle also recorded portions of the conversations that occurred, both inside and outside of the house.

{5} The house was dark with no sign of activity inside. Eagle knocked at the door several times but no one responded. There were keys on the front porch attached to a note that read, "These keys belong to Mike Wells." Eagle walked around the house, knocking on windows and doors, but received no response.

{6} When Phelps arrived, Eagle informed her of the note and told her no one appeared to be home. Phelps observed a person looking out of one of the windows. The officers again knocked on the door and said, "Ma'am, we know you're in there. You need to open the door please." Defendant opened the door briefly and while crying told the officers, "Go, please just go." Eagle testified that Defendant appeared very distraught and emotional. The officers continued to knock and to ask to speak with Defendant.

{7} Defendant again opened the door and yelled at the officers to "fucking leave me alone." She tried to shut the door but Eagle stuck his foot in the opening. Defendant protested and told the officers she was not a danger to herself or to anyone. Phelps forced her way into Defendant's home.

{8} The officers testified that they entered Defendant's home because they were concerned about her welfare. Eagle testified that preservation of life is his most important duty as a certified police officer and that he would not have been performing his duty had he just walked away from the door when Defendant shut it. Phelps testified that she was concerned for Defendant's safety. She also testified she felt that she had a duty to preserve life.

{9} Defendant told the officers to leave unless they had a warrant. The officers explained they were there to check on Defendant's welfare because someone had called who was worried about her. Defendant shouted that nobody cared about her.

{10} The officers requested identification but Defendant refused. She moved into her kitchen and shouted at the officers "Get out of my fucking house." She also shouted "I'm fine, I'm pissed[,] get out of my house." {11} The officers moved toward Defendant. Defendant continually told the officers to leave, and backed up until she stood near a kitchen counter. On the counter were a large knife and a small paring knife. Defendant picked up the small paring knife and again told the officers to get out. It is disputed whether Defendant stepped toward the officers. Phelps drew her gun and held it in a low, ready position. Eagle ordered Defendant to put the knife down, and she complied.

{12} Defendant told the officers her boyfriend (Wells) was on the phone. Eagle talked with him briefly. Wells gave Defendant's name to Eagle.

{13} Defendant, sobbing and emotional, continued to tell the officers to leave her house. With her driver's license and other identification cards in hand, she approached Phelps. Defendant shouted "Eat this, bitch" and shoved the cards into Phelps's mouth, causing a small cut and some swelling. At that point, five and one-half minutes had passed since Defendant first opened the door and a little less than three minutes since the officers entered Defendant's home. Defendant moved to another room and, after further interaction between the officers and Defendant not relevant to this appeal, Defendant was arrested.

{14} The recording reveals that the officers' voices throughout were polite and calm, but firm. Defendant was upset and yelling most of the time, with the exception of a brief period of less than a minute in the middle of the tape when her voice temporarily calmed.

{15} Defendant was charged by criminal information with two counts of aggravated assault on a peace officer, two counts of battery on a peace officer, attempting to disarm a peace officer, and battery on a household member. Defendant's motion to suppress was denied and the case was tried to a jury. The jury returned a verdict of guilty on one count of battery on a peace officer and on the misdemeanor charge of battery on a household member. Defendant appeals the denial of the motion to suppress and the verdict of guilt as to battery on a peace officer.

DISCUSSION

The Warrantless Entry Into Defendant's Residence

{16} Defendant contends that the officers' warrantless entry into her home was in violation of the Fourth Amendment to the United States Constitution and Article II, § 10 of the New Mexico Constitution. She argues that the warrantless entry requires suppression of all evidence of the peace officer battery, because the evidence was derived from an unconstitutional entry into her home.

{17} Defendant also argues that Phelps was not "in the lawful discharge" of her duties, as required under NMSA 1978, § 30-22-24(A) (1971): "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."

{18} It is undisputed that the officers lacked both consent and a warrant to enter Defendant's home. However, it is also undisputed that the officers' entry into the home was not based on any suspicion of criminal activity and did not involve a criminal investigation but, rather, was solely in response to a report that Defendant may be suicidal. Defendant does not challenge the officers' motivation in responding to that report.

A. Defendant's Motion to Suppress

{19} Defendant's motion to suppress all evidence of the felony battery was based on the legal argument that, because Phelps did not have a warrant to enter Defendant's home making the entry unlawful under the Fourth Amendment and the New Mexico Constitution, all evidentiary fruits of that poisonous tree must be suppressed.

1. Standard of Review

{20} Resolution of the issue requires us to determine whether the actions of the police officers implicate a constitutional right and whether those actions fall within an exception to that right. We determine whether the law was correctly applied to the facts, giving deference to the "purely factual assessments" of the trial court. State v. Attaway, 117 N.M. 141, 144-46, 870 P.2d 103, 106-08 (1994). We review the trial court's application of law de novo. Id.

2. The Community Caretaking Doctrine in New Mexico

{21} In this case, the officers were acting pursuant to a 911 call regarding a possible suicide threat. They were motivated solely to check on a person's welfare and to assist a person in need. They were not engaged in any sort of criminal investigative activity. These actions fall within a police officer's community caretaker function, which is, broadly stated, to render aid and assistance to those in need.

{22} The community caretaker doctrine appears to have taken first New Mexico root in a case involving the stop of a vehicle, State v. Reynolds, 117 N.M. 23, 24-25, 868 P.2d 668, 669-70 (Ct.App.1994), rev'd on other grounds, 119 N.M. 383, 890 P.2d 1315 (1995). The police stopped a moving pickup truck for safety reasons, when three passengers were sitting on the tailgate. The police detained the vehicle to check driver's license and registration, following which the police arrested the defendant for car theft. We stated: "Part of the function of police officers is to carry out community caretaking functions to enhance public safety." 117 N.M. at 25, 868 P.2d at 670. Our introduction of the community caretaking function was based on Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), which established a community caretaker exception to the Fourth Amendment in a circumstance of police-citizen contact involving automobiles. Id. at 441, 93 S.Ct. 2523. In its reversal of our decision in Reynolds, the New Mexico Supreme Court acknowledged the community caretaker function. 119 N.M. at 388, 890 P.2d at 1320.

{23} While Reynolds was pending before the New Mexico Supreme Court, we decided Apodaca v. State Taxation & Revenue Dep't, Motor Vehicle Div., 118 N.M. 624, 884 P.2d 515 (Ct.App.1994). In Apodaca, the police...