State v. Warren
| Decision Date | 17 October 1985 |
| Docket Number | No. 8531,8531 |
| Citation | 1985 NMCA 95,709 P.2d 194,103 N.M. 472 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Willie WARREN, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Following denial of defendant's motion to suppress physical evidence, the parties stipulated to the facts and to defendant's right to appeal the order denying his motion. Pursuant to the stipulation, defendant was convicted of possession of cocaine after a bench trial. He now appeals from the judgment, sentence and denial of his motion to suppress.
ISSUES:
Defendant raises the following issues on appeal:
1) Whether the arresting officer, Lt. Casey, had probable cause to believe that defendant was committing a misdemeanor in the officer's presence;
2) If Lt. Casey had probable cause to arrest defendant, whether the officer delayed unreasonably in executing the arrest;
3) Whether the misdemeanor arrest was a pretext for a warrantless search for drugs; and
4) If the arrest of defendant was lawful, whether the search of his personal belongings was unlawful.
A fifth issue raised in the docketing statement but not briefed is deemed abandoned. State v. McGill, 89 N.M. 631, 556 P.2d 39 (Ct.App.1976).
Because the first two issues are dispositive and require reversal, we do not reach the remaining issues. We hold that because the misdemeanor of drinking in public was not committed in the presence of the arresting officer, a warrantless arrest could not be made, and, even if it could, an unreasonable period of time elapsed between the commission of the misdemeanor and the execution of the arrest.
FACTS:
Several days before defendant's arrest, the Albuquerque Police Department received a tip from a confidential informant that a large black man, driving a county service vehicle, had been selling drugs in Dennis Chavez Park. The police placed the park under surveillance and identified defendant as matching the informant's description. Two police officers, Lt. Casey and Officer Wadley, followed defendant for several hours on September 13 or 14, 1984, but observed no criminal activity. The police apparently then ceased their investigation; however, on the morning of September 18, 1984, Lt. Casey telephoned Officer Ramkowski to inform him of defendant's name.
On September 18, 1984, Officer Ramkowski was assigned by Lt. Casey to conduct a surveillance of Dennis Chavez Park. At around 10:30 a.m., he observed the defendant, driving a county road service vehicle, arrive at the park. The officer then watched the defendant get out of the vehicle and drink a beer with another individual who supplied the beer to the defendant. Drinking in public is a misdemeanor, in violation of an Albuquerque city ordinance. Officer Ramkowski recognized the defendant.
Upon viewing the defendant drinking the beer in public, Officer Ramkowski telephoned Lt. Casey to inform Casey that defendant was drinking in public. Testimony conflicted as to why Officer Ramkowski did not arrest the defendant on the spot. Ramkowski testified that he did not arrest defendant because he "guessed" that the police were going to watch for defendant to do something else, namely, sell narcotics. Lt. Casey, however, testified that Ramkowski did not arrest the defendant because Ramkowski was not in uniform.
Following receipt of Officer Ramkowski's telephone call, Lt. Casey said that he drove to the park, stopped upon the shoulder of the road adjoining the park and observed the defendant drinking from an off-colored or smoke-colored glass container. He could not identify what defendant was drinking. (Conversely, Officer Ramkowski testified that, to the best of his knowledge, Lt. Casey had not gone to the park.) After observing the defendant drinking from the container, Lt. Casey did not arrest him but proceeded to the county road department, one and one-half miles from the park. Casey's decision not to arrest the defendant immediately was prompted by his concern over what to do with the county vehicle which the defendant was driving. The vehicle, which carries fuels, is used for heavy equipment servicing. When county machinery runs out of gasoline, this "huge" vehicle is used to refuel the machinery. Casey testified that he did not want to take responsibility for the vehicle, partly, at least, out of concern that the police department could be civilly accountable for the vehicle or articles in the vehicle. Rather, Casey preferred to wait for the defendant to return with the vehicle to the county yard or to enlist the aid of the county supervisor.
In the meantime, the defendant left the park, followed by Officer Ramkowski, and travelled to an apartment complex where he left the vehicle, entered an apartment, and remained for approximately half an hour. Defendant left the apartment at approximately 12:15 p.m. to return to the county yards where he arrived at around 12:20 p.m. Ramkowski followed the defendant back to the county yards where Ramkowski's surveillance ended. (Lt. Casey, on the other hand, testified that the defendant arrived at the county yards at about 2:00 p.m.)
Lt. Casey arrested the defendant at the county yards at about 2:15-2:30 p.m. Officer Ramkowski was not directly involved in the arrest. The defendant was outside of the county vehicle when he was arrested. He was approximately 6-7 feet away from the vehicle when he was handcuffed. The defendant's person as well as the vehicle was searched. An "Igloo" cooler was removed from the vehicle and placed on the hood of a law enforcement vehicle, approximately 5-6 feet away from the defendant. The officers began "inventorying" and discovered a quantity of marijuana, some controlled substances, and a small amount of cocaine. Lt. Casey justified the search on the bases of a valid search incident to a lawful arrest as well as a departmental safeguard due to the Albuquerque Police Department's being sued for failure to account properly for the safeguard of prisoners' belongings.
PROCEEDINGS BELOW:
Defendant moved to suppress the evidence on the basis of an unlawful search. The court found the following:
1) The delay between the observed misdemeanor and arrest was reasonable in light of the attending circumstances, including: Officer Ramkowski was not in uniform and assigned to monitor the park generally; and an on-the-spot arrest would have necessitated seizure of a "unique, important County Government vehicle," the destination of which to the county yards was known to the officers;
2) The arrest was valid and proper;
3) The searched area was within the area accessible to the defendant; therefore, the search was a reasonable search incident to arrest, the scope of which being within permissible limits;
4) The search of the cooler was reasonable, partly because the officers could reasonably expect to find evidence of the misdemeanor, beer, within the cooler;
5) The search, arrest, and seizure were done under the exclusive supervision of Lt. Casey whose reasons and motives were proper. The understandings of assisting officers were irrelevant; and
6) The removal of personal items was reasonable, due to custodial concerns, with the court finding a similarity to automobile inventory searches.
On appeal, a trial court's denial of a motion to suppress will not be disturbed if supported by substantial evidence, unless it also appears that the determination was erroneously premised. State v. Boeglin, 100 N.M. 127, 666 P.2d 1274 (Ct.App.1983). We view the evidence in a light most favorable to the trial court's ruling, indulging all inferences in support of that ruling, and disregarding all evidence to the contrary. Id.; State v. Rivera, 85 N.M. 723, 516 P.2d 694 (Ct.App.1973).
The rule in New Mexico is that a police officer may make a warrantless misdemeanor arrest if the misdemeanor is committed in the officer's presence. Cave v. Cooley, 48 N.M. 478, 152 P.2d 886 (1944); City of Roswell v. Mayer, 78 N.M. 533, 433 P.2d 757 (1967). The arrest must be based upon facts known to the officer at the time of the arrest. State v. Luna, 93 N.M. 773, 606 P.2d 183 (1980).
The defendant argues that Lt. Casey had no probable cause to believe that the defendant was drinking beer in a public place in Casey's presence. Casey only observed from a distance the defendant drinking from an off-colored or smoked-colored container. The state argues, however, that the combination of Officer Ramkowski's telephone call to Lt. Casey, informing Casey that the defendant was drinking beer in the park, and Lt. Casey's observation of the defendant drinking in the park from an off-colored or smoke-colored container gave Lt. Casey probable cause to believe that the defendant was committing a misdemeanor in the lieutenant's presence. The first inquiry, therefore, is to determine what standard of sensory perception is necessary to satisfy the "in presence" requirement.
Some jurisdictions have concluded that the felony/misdemeanor distinction is outmoded and have eliminated the "in presence" requirement for warrantless misdemeanor arrests. See, Comment, The Presence Requirement and the "Police Team" Rule in Arrest for Misdemeanors, 26 Wash. & Lee L.Rev. 122 (1969). Other jurisdictions, however, strictly adhere to the distinction requiring that, based upon his or her sensory perceptions, an officer must be able to testify to acts comprising each material element of the misdemeanor before a misdemeanor can be said to have been committed in the officer's presence. See, e.g., In re Alonzo C., 87 Cal.App.3d 707, 151 Cal.Rptr. 192 (1978) (...
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