New Mexico Court Approves Tribal Police DWI Stop in Gallup

The New Mexico Court of Appeals held that a Navajo Police Officer's DWI stop of a motorist in the Gallup city limits was reasonable under New Mexico law. The Court reasoned that state law did not prohibit the Navajo Police Officer from making a DWI stop off of the Navajo reservation. The Court affirmed the district court's denial of the defendant's motion to suppress. State v. Martinez, 2005-NMCA-052; cert. denied.

McKinley County had cross-commissioned the Navajo Officer. The officer was in an area outside of his regular patrol. He witnessed erratic driving and initiated a stop of the vehicle. Once the tribal officer made the stop and an initial assessment of the driver he called for assistance from a McKinley County deputy, who completed the DWI investigation and arrested the defendant.

The defendant argued that a state statue, which precludes the New Mexico State Police from cross-commissioning tribal officers for law enforcement activities in Gallup, and other select locales, deprived the Navajo officer of any authority in the City of Gallup. NMSA 1978, Sec. 29-1-11(C)(8). The defendant did not argue on appeal that McKinley County lacked the authority to cross-commission tribal officers.

Despite the language in the statute that prohibits the state police from cross-commissioning tribal officers to enforce state laws in Gallup, the Court of Appeals found that the statute did not divest the tribal officer of the authority to stop a vehicle violating traffic laws in the City of Gallup. The Court agreed that the statute did not alter the McKinley County commission to the officer. The obvious question left open is whether McKinley County has the authority to cross-commission officers. The Court seemed troubled by the cross-commission, but held that the defendant had not raised the issue on appeal

New Mexico Supreme Court to Review Protective Sweep Opinion

The New Mexico Supreme Court has granted certiorari in State v. Zamora, 2005 NMCA 39 (February 11, 2005); cert. granted No. 29,1117. In Zamora, the New Mexico Court of Appeals suppressed cocaine found in a partially opened medicine cabinet when Albuquerque police were conducting a protective sweep of a motel room. The Court of Appeals ordered the matter remanded for a new trial.

The Zamora decision involved a question of whether the defendant had standing to challenge the search as a guest in the motel room rented by his mother and whether the officer properly seized the cocaine from the cabinet when he saw simply a plastic baggie.

The district court and the court of appeals found that the officers were properly in the motel room pursuant to the consent of the defendant. The officers made an arrest of defendant based upon cocaine seen on a table in the room and defendant's identification of the substance as cocaine. Once the officers handcuffed the defendant, one officer conducted a protective sweep of the motel room to determine if anyone else was present.

The officer saw a plastic baggie in a partially opened medicine cabinet. The officer opened the medicine cabinet further and seized the baggie, which contained cocaine. The Court of Appeals rejected the state's argument that the baggie was legally seized pursuant to the plain view doctrine.

The certiorari seems unusual. The Zamora opinion reads as a dry, common sense application of court precedent to an overbroad warrantless search. Stay tuned.

New Mexico's Emergency Assistance Doctrine

New Mexico criminal defense lawyers and district attorneys will need to study State v. Ryon, 2005 NMSC 005 (2005), to learn the contours and discover the hidden gems in the recently announced New Mexico emergency assistance doctrine. In Ryon, the New Mexico Supreme Court announced the emergency assistance exception to the warrant requirment and distinguished it from the community caretaker exception. The Ryon Court, at once, expanded and limited the holdings in State v. Nemeth, 2001 NMCA 029, 130 N.M. 261, 23 P.3d 936 (extending community caretaker exception to warrantless home entries)

The Ryon Court established a three part test to determine whether the emergency assistance doctrine applies:

1) An objective, life-thretening emergency in a residence:

The objective standard for a warrantless and non-consensual entry into a home, however, requires a higher degree of urgency than the Nemeth decision may have conveyed. The emergency assistance doctrine applies specifically to warrantless intrusions into the home. The emergency assistance doctrine requires an emergency, a strong perception that action is required to protect against imminent danger to life or limb, an emergency that is sufficiently compelling to make a warrantless entry into the home objectively reasonable under the Fourth Amendment.

2) A subjective motivation to preserve life:

The emergency assistance doctrine is not applicable, however, unless the entry is motivated by the perceived need to act immediately in order to save a life.

3) A nexus between the place searched and the emergency.

The Ryon Court made clear that the doctrine is not limited to cases in which the community caretaker function is exercised in the non-criminal setting. In other words, the exception may apply in any criminal investigation. But, as previously stated, the Ryon appears to reject the Nemeth opinion for its lower emergency level allowing an intrusion into the home.