State v. Salas

• Citation: 986 P.2d 482,127 N.M. 686
• Decision Date: 18 May 1999
• Docket Number: No. 19391.,19391.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Frank SALAS, Sr., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

986 P.2d 482

127 N.M. 686

STATE of New Mexico, Plaintiff-Appellee, v. Frank SALAS, Sr., Defendant-Appellant.

No. 19391.

Court of Appeals of New Mexico.

May 18, 1999.

Certiorari Denied June 21, 1999.

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, for Appellee.

Liane E. Kerr, Albuquerque, for Appellant.

Certiorari Denied, No. 25,779, June 21, 1999.

OPINION

WECHSLER, J.

{1} Defendant Frank Salas, Sr. was convicted in district court of possession of methamphetamine, a fourth degree felony, and sentenced as an habitual offender. He appeals from the district court's judgment and sentence and commitment asserting that: (1) there was inadequate evidence to support his arrest for disorderly conduct; (2) the district court erred in failing to grant a mistrial or admonish the jury regarding the State's improper cross-examination of a witness; and (3) the State failed to meet its burden of proof at the habitual offender proceeding to establish Defendant's identity as the person convicted at trial. We affirm.

Facts and Procedural Background

{2} Defendant attended a wedding reception at the Tucumcari Convention Center on the evening of July 12, 1997. Officers Tony Alvidrez and Charles Aguirre of the Tucumcari Police Department provided security at the reception. During the course of the evening, Officer Alvidrez had occasion to observe Defendant drinking alcoholic beverages. Officer Alvidrez testified at the hearing on Defendant's motion to suppress that Defendant became increasingly intoxicated as the evening progressed.

{3} After 11:00 p.m. that evening, both Defendant and Officer Alvidrez were in the lobby of the convention center near the rest-rooms. Officer Alvidrez testified that he heard someone talking loudly and using profanity. He turned around and saw Defendant talking to "an older lady." He observed a second "older lady" walking up against the wall on the left side of Defendant trying to avoid Defendant. This woman made eye contact with Officer Alvidrez, looked at Defendant, and then looked back at Officer Alvidrez. Officer Alvidrez understood her actions to mean that Defendant's actions were bothering her.

{4} At that time, Officer Alvidrez testified that he approached Defendant and asked him "to try to keep the profanity down." Defendant then became very angry, continued to get louder and louder, and clenched his fist and walked toward Officer Alvidrez. Officer Alvidrez testified that he then advised Defendant that he was under arrest for disorderly conduct and that Defendant directed obscene language to Officer Alvidrez and put his hands behind his back so that he could not place Defendant under arrest. Officer Alvidrez put Defendant against the wall and secured his hands, and with the assistance of Officer Aguirre, placed Defendant on the ground to physically arrest him. The officers then escorted him to Officer Alvidrez's vehicle.

{5} Defendant presented a different description of the incident. He testified that he had had several prior contacts with Officer Alvidrez which led him to believe that Officer Alvidrez was harassing him. Defendant stated that the first "older lady" was a close family friend whom he had not seen for some time. They were "joking around" and the woman said, referring to Officer Alvidrez, "I'm gonna tell this officer to arrest you." Defendant, who said that he had only two beers that evening, stated that he had not used profanity and responded to the woman by saying: "no, don't joke around with these guys because they will arrest me." Defendant testified that Officer Alvidrez, using an obscenity, asked Defendant if he wanted trouble from him. Using the same obscenity, Defendant inquired of the officer whether he wanted trouble with Defendant. According to Defendant, after he and the woman started to walk off, Officer Alvidrez grabbed Defendant from behind and slapped him down onto the pavement. Officer Aguirre then arrived, and Defendant was slapped against the wall and handcuffs put on him. Defendant denied clenching his fists or making aggressive motions toward Officer Alvidrez and testified that he was not given any warnings about his language or conduct.

{6} Julie Barela, Defendant's sister, and Jennifer Dominguez were in the area and observed all or part of the incident. Barela testified that she saw Defendant and the older woman joking and witnessed the woman hug Defendant and jokingly state that she would call the "cop," referring to Officer Alvidrez. She did not hear profanity. She testified that Officer Alvidrez then grabbed Defendant, slammed him against the wall, and commenced arrest. She did not hear Officer Alvidrez ask Defendant to calm down and she did not see Defendant clench his fists, advance at Officer Alvidrez, or act as the aggressor. Dominguez said that she saw Officer Alvidrez "dogging" Defendant and heard Defendant say "[d]o you want a piece of me?" She observed Officer Alvidrez slam Defendant to the wall.

{7} While booking Defendant at the Quay County Detention Center, the booking and supervising employee observed Defendant first holding and then trying to swallow a clear baggie when Defendant changed clothes. The employee found two baggies of methamphetamine which Defendant claimed that the police planted on him.

{8} Defendant filed a motion to suppress all evidence obtained following his arrest on the ground that he was unlawfully arrested without a warrant and without probable cause. He argued that the admission of the evidence would deny him his right to be free from unreasonable search and seizure guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article 2, Section 10 of the New Mexico Constitution. The district court held a hearing on the motion and, after trial, denied the motion. The district court concluded that Officer Alvidrez had probable cause to arrest Defendant for the misdemeanor crime of disorderly conduct because Officer Alvidrez observed "boisterous, loud, and/or profane behavior by the Defendant which appeared to disturb a member of the public." On appeal, Defendant contests this conclusion.

Probable Cause for the Arrest

{9} A police officer may make an arrest for a misdemeanor if the officer has probable cause to believe that an offense is being committed in his or her presence. See Boone v. State, 105 N.M. 223, 226, 731 P.2d 366, 369 (1986); State v. Warren, 103 N.M. 472, 475-76, 709 P.2d 194, 197-98 (Ct.App. 1985). In ascertaining whether an offense is being committed in an officer's presence, the officer may take into account what the officer observes through use of any of his or her senses. See State v. Forsythe, 194 W.Va. 496, 460 S.E.2d 742, 745 (1995) (per curiam) (holding that officer was present when he heard the defendant make offensive statements and observed the victim "step or jerk back from the kitchen wall"); see also Taylor v. United States, 259 A.2d 835, 837 (D.C. 1969) ("The officer is not limited to his sense of vision alone, i.e., it is not necessary for the officer to have actually seen every fact constituting the commission of the misdemeanor, but he may utilize all his senses.... Thus a misdemeanor is committed in the presence of an officer when, with the aid of all his senses and what is common knowledge under the circumstances, the officer has knowledge that such is the case." (footnotes omitted)); 3 Wayne R. LaFave, Search and Seizure § 5.1(c), at 23-24 (3d ed.1996).

{10} Not only must the officer perceive through his or her senses that an offense is being committed, but the officer must also have a reasonable ground to infer that the suspect is committing an unlawful act to meet the probable cause requirement. Probable cause to justify a misdemeanor arrest exists when the facts and circumstances as observed by the officer through the officer's senses are sufficient to warrant an officer of reasonable caution to believe that an offense is occurring. See Warren, 103 N.M. at 475-76, 709 P.2d at 197-98 (noting use of officer's "sensory perceptions" to meet the "in presence" requirement); LaFave, supra, § 5.1(c), at 30; see also State v. Galloway, 116 N.M. 8, 11, 859 P.2d 476, 479 (Ct.App. 1993) ("An officer has probable cause when facts and circumstances within the officer's knowledge, or on which the officer has reasonably trustworthy information, are sufficient to warrant someone of reasonable caution to believe that an offense has been or is being committed.").

{11} When we apply this probable cause test on appeal, we review the district court's determination as a question of law, and as such, de novo. See State v. Anderson, 107 N.M. 165, 168, 754 P.2d 542, 545 (Ct.App. 1988). However, we defer to the fact finder for the factual determination of conflicting facts and use those facts to address the legal issues. See id. at 168-69, 754 P.2d at 545-46.

{12} We believe that the district court reasonably could have concluded that Officer Alvidrez had probable cause to arrest Defendant. NMSA 1978, Section 30-20-1(A) (1967) prohibits the following conduct as the petty misdemeanor of disorderly conduct: "engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace." This statutory provision has two elements: the conduct itself and the tendency of the conduct to disturb the peace.

{13} As to Defendant's conduct, Officer Alvidrez testified that he heard "someone talking rather loudly using profanity." He identified the speaker as Defendant. Defendant and certain of his witnesses disputed this description of Defendant's conduct at trial. The district court, however, concluded that Officer Alvidrez observed "boisterous, loud, and/or profane behavior by the Defendant" thereby crediting the testimony of Officer Alvidrez in contrast to the other testimony. We defer to the district court when it weighs the credibility of witnesses and...