State v. Rodarte

• Decision Date: 24 October 2005
• Docket Number: No. 25,273.,25,273.
• Citation: 2005 NMCA 141,125 P.3d 647
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Raymundo RODARTE, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 647

125 P.3d 647

2005 NMCA 141

STATE of New Mexico, Plaintiff-Appellee, v. Raymundo RODARTE, Defendant-Appellant.

No. 25,273.

Court of Appeals of New Mexico.

October 24, 2005.

Certiorari Granted, No. 29,537, December 12, 2005.

Patricia A. Madrid, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jon C. Fredlund, Klipstine & Fredlund, LLC, Hobbs, NM, for Appellant.

OPINION

PICKARD, Judge.

{1} In this case, we decide whether an officer may arrest an individual solely on the basis of probable cause that a minor criminal offense for which jail time is not authorized has been committed. The United States Supreme Court has decided that such arrests are permissible under the Fourth Amendment to the United States Constitution. Atwater v. City of Lago Vista, 532 U.S. 318, 323, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Holding that the greater privacy protections afforded by Article II, Section 10 of the New Mexico Constitution do not permit arrests for non-jailable offenses on the basis of probable cause alone, and siding with the four dissenting justices of the United States Supreme Court, we reverse Defendant's convictions for possession of a controlled substance and tampering with evidence. We affirm his conviction for being a minor in possession of alcohol and remand for sentencing solely on that conviction.

BACKGROUND

{2} The undisputed facts are as follows. On August 1, 2003, Hobbs police officer Antonio De La Fuente stopped the vehicle in which Defendant was a passenger for running a stop sign. As the officer approached the driver's side of the car, he saw Defendant attempt to place something under his seat, and he noted a wet spot on the passenger's side floorboard. When Officer De La Fuente asked Defendant what was under the seat, Defendant put both of his hands under the seat and appeared to attempt to push something further back under the seat.

{3} Officer De La Fuente then ordered Defendant out of the vehicle and called for backup. When his backup arrived, Officer De La Fuente looked underneath the passenger's seat and found a partially empty bottle of beer. When the officer asked Defendant's age, Defendant replied that he was eighteen. Officer De La Fuente also noted that Defendant exhibited several indicia of intoxication, including blood-shot, watery eyes. Based on this information, the officer arrested Defendant on suspicion of being a minor in possession of alcohol and transported him to the Hobbs City Jail. Subsequently, Officer De La Fuente searched the backseat of the patrol car where Defendant had been sitting and found a white, powdery residue on the seat itself and a folded dollar bill containing a similar substance. The substance was later found to be cocaine.

{4} Defendant was charged with possession of a controlled substance in violation of NMSA 1978, § 30-31-23 (1990), tampering with evidence in violation of NMSA 1978, § 30-22-5 (2003) (for leaving the cocaine in the patrol car), and being a minor in possession of alcohol in violation of NMSA 1978, § 60-7B-1(C) (2004). Defendant moved to suppress all the contraband, arguing that there was no probable cause for the initial search resulting in the seizure of the beer bottle, making his arrest illegal, and that the cocaine found in the patrol car should thus be suppressed because it was a product of the arrest. In the alternative, Defendant argued that even if the initial search was permissible, the arrest was still illegal (and the cocaine should be suppressed) because the New Mexico Constitution does not permit an arrest for a minor criminal offense that cannot result in incarceration, such as being a minor in possession of alcohol. See § 60-7B-1(G). The State contended that all the contraband was admissible because it was seized pursuant to an arrest based on probable cause. The trial court denied Defendant's motion and found Defendant guilty of all three offenses. The only issue Defendant raises on appeal is whether his arrest was permissible under the New Mexico Constitution.

STANDARD OF REVIEW

{5} Because this case presents only the pure legal question of whether the New Mexico Constitution permits arrests for minor offenses that cannot result in jail time, we conduct a de novo review of the trial court's denial of the motion to suppress. See State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994) (indicating de novo review of "threshold constitutional issues"), modified on other grounds, State v. Lopez, 2005-NMSC-018, 138 N.M. 9, 116 P.3d 80.

DISCUSSION

{6} We analyze this question in accordance with the interstitial approach outlined in State v. Gomez, 1997-NMSC-006, ¶¶ 21-22, 122 N.M. 777, 932 P.2d 1. We therefore begin with a discussion of Atwater, in which the U.S. Supreme Court decided that a warrantless arrest based only on probable cause of a seatbelt violation for which jail time was not authorized was permissible under the Fourth Amendment. 532 U.S. at 323, 354, 121 S.Ct. 1536. The Court first determined that the historical record did not support a conclusion that such arrests would have been prohibited under the original understanding of the Fourth Amendment. Id. at 340, 121 S.Ct. 1536. The Court then rejected the arrestee's argument that a modern understanding of the Fourth Amendment's reasonableness requirement forbids arrest when "conviction could not ultimately carry any jail time and when the government shows no compelling need for immediate detention." Id. at 346, 121 S.Ct. 1536.

{7} In rejecting this second argument, the Court reiterated its strong preference for easily administrable categorical rules in the Fourth Amendment area. Id. at 347, 121 S.Ct. 1536 (indicating that standards must be "sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest or search is made"). The arrestee's proposed rule of forbidding arrest for non-jailable offenses absent a compelling need, the Court said, could prove unworkable in the field because officers might not know whether an offense was jailable, and in some cases, the jailability determination could be based on facts not immediately ascertainable. Id. at 348-49, 121 S.Ct. 1536 (citing statutes providing jail time only for subsequent DWI offenses and statutes basing punishment on the weight of drugs possessed). The Court's concerns were not alleviated by the arrestee's proposed exception to the rule for instances in which either arrest is necessary to enforce traffic laws or subjects might endanger others by continuing the offense despite a citation. Id. at 349-50, 121 S.Ct. 1536. Such an exception, the Court said, would also be unworkable because it would engender frequent questions regarding the genuineness of the risk that an individual would continue the offense, and it would potentially subject officers to expanded 42 U.S.C. § 1983 liability, leading to underenforcement of laws. Atwater, 532 U.S. at 350-51, 121 S.Ct. 1536. Finally, the Court reaffirmed that the probable cause standard is applicable to "`all arrests, without the need to "balance" the interests and circumstances involved in particular situations.'" Id. at 354, 121 S.Ct. 1536 (quoting Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)). Such balancing, the Court said, should only be conducted when the arrestee can meet the high standard from Whren v. United States by showing that the arrest was "`conducted in an extraordinary manner, unusually harmful to [his] privacy or even physical interests.'" Atwater, 532 U.S. at 352-53, 121 S.Ct. 1536 (alteration in original) (quoting Whren v. United States, 517 U.S. 806, 818, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). Thus, after Atwater, the federal constitution permits any arrest based on probable cause, no matter how disproportionate under the circumstances, so long as the arrest does not rise to the level of a violation under Whren.

{8} In dissent, Justice O'Connor concluded that the Fourth Amendment does not allow arrest for a non-jailable offense based solely on probable cause. Atwater, 532 U.S. at 363, 121 S.Ct. 1536 (O'Connor, J., dissenting). Because the historical record was unclear, Justice O'Connor found it necessary to balance "`the degree to which [the arrest] intrudes upon an individual's privacy'" with "`the degree to which [the arrest] is needed for the promotion of legitimate governmental interests.'" Id. at 361, 121 S.Ct. 1536 (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)). She determined that the governmental interest in making this type of arrest was often "limited, at best." Id. at 365, 121 S.Ct. 1536. If a suspect is not a flight risk and arrest is not necessary to abate the proscribed behavior, then a citation may "serve the State's ... law enforcement interests every bit as effectively as an arrest." Id. With regard to the individual interests at stake, Justice O'Connor noted that the intrusion on personal privacy caused by an arrest can be severe. Id. at 364, 121 S.Ct. 1536. Individuals may be subject to a full search including confiscation of personal items, and, if an individual is a passenger in a car, a search of the entire passenger compartment of the vehicle, including any containers found therein. Id. Moreover, arrestees can be detained for up to 48 hours, housed with other potentially dangerous individuals, and subjected to the consequences of the arrest becoming part of the permanent public record. Id. at 364-65, 121 S.Ct. 1536.

{9} Because the balancing of interests in these cases tends to weigh so heavily in favor of the individual, Justice O'Connor would have adopted a standard similar to that of Terry v. Ohio:

I would require that when there is probable cause to believe that a fine-only offense has been committed, the police officer should issue a citation unless the officer is "able to point to...