State v. Slayton

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-054

Filing Date: November 6, 2009

Docket No. 31,244

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

MICHAEL SLAYTON,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Steven L. Bell, District Judge

Henninghausen & Olsen, L.L.P.
Kenneth B. Wilson
Roswell, NM

for Petitioner

Gary K. King, Attorney General
Martha Anne Kelly, Assistant Attorney General
Santa Fe, NM

for Respondent

OPINION

CHÁVEZ, Chief Justice.

{1} After rear-ending a vehicle and leaving the scene of the accident, Defendant Michael
Slayton was handcuffed in his driveway by a police service aide (PSA), pending the arrival
of police officers to investigate Defendant’s involvement in the accident. As a result of the
investigation, Defendant was charged with aggravated DWI, second offense, contrary to
NMSA 1978, Section 66-8-102 (1953, prior to 2007 amendments). At trial Defendant
sought to suppress all evidence following his detention and arrest because the PSA who
detained him was employed as a non-commissioned officer of the Roswell Police

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Department and did not have the statutory authority to detain or arrest an individual
suspected of DWI. Defendant contends that the PSA’s lack of statutory authority to detain
or arrest him is an unreasonable seizure under the Fourth Amendment of the United States
Constitution, entitling him to the remedy of suppression. While we agree that the PSA did
not have the authority to detain or arrest an individual suspected of a crime, we disagree that
a state actor’s unauthorized seizure of a person suspected of committing a crime is per se a
violation of the Fourth Amendment. Because Defendant has not argued either that the
unauthorized seizure violated the New Mexico Constitution or that the Legislature has made
suppression the remedy for an unauthorized arrest, we do not address those issues. Finally,
we disagree with Defendant’s final argument on appeal that his consent to a blood test was
coerced. Therefore, we affirm Defendant’s conviction.

I. BACKGROUND

{2} On the afternoon of January 7, 2007, PSA Ali Blake (Blake) responded to a traffic
accident in Roswell, New Mexico. Blake observed that a red vehicle had been rear-ended
by a vehicle with white paint, and witnesses at the scene informed her that the driver of a
white truck rear-ended the vehicle and left the scene. Blake obtained the license plate of the
white truck from a witness and was told in which direction the truck was traveling as it left
the scene. Blake located the truck parked in Defendant’s driveway with Defendant still
inside, either unconscious or asleep.

{3} Blake knocked on the truck’s window, awakening Defendant and ordering him to get
out of the truck. When Defendant got out of his truck, Blake detected an odor of alcohol
coming from him and noticed several boxes of ammunition on the truck’s floorboard. Once
he was out of the truck, she asked Defendant to get on his knees. Instead of complying,
Defendant tried to walk toward his house but tripped and fell, injuring his nose. Citing
concerns for both her safety and that of Defendant, Blake handcuffed Defendant and called
police officers and medical assistance personnel to the scene.

{4} Roswell Police Officer Scott Stevenson responded to Blake’s request for assistance.
Upon arriving at Defendant’s house, Officer Stevenson approached Defendant, who was
sitting on the ground. He noticed that Defendant appeared disoriented or confused, had
bloodshot, watery eyes, and slurred speech. Officer Stevenson reported that Defendant
admitted he had been drinking vodka “all day” and driving his truck, but he could not
remember the crash or why his nose was bleeding. Defendant was taken to the hospital,
where Officer Stevenson formally placed him under arrest for DWI. Approximately four
hours after the accident, Defendant consented to have his blood drawn to test his blood
alcohol content (BAC). His BAC was 0.36 grams of alcohol per 100 milliliters of blood.

{5} Defendant filed three motions to suppress evidence in district court, two of which are
the subject of this appeal. He moved the court to suppress all evidence obtained by the
police after his detention or arrest because “[t]he arrest and detention of Defendant [were]
without proper police authority” and were therefore illegal. He also moved to suppress all

2
evidence relating to the blood alcohol draw because it was taken without Defendant’s
voluntary consent. The district court denied these two motions. Defendant entered a
conditional plea of no contest to aggravated DWI, second offense, a misdemeanor,
preserving his right to appeal the “issues surrounding his motions to suppress/unlawful
arrest/blood alcohol draw without consent[.]” He then appealed to the Court of Appeals.

{6} In a divided memorandum opinion, the Court of Appeals affirmed the trial court’s
order denying Defendant’s motions to suppress. State v. Slayton, No. 27,892, slip op. at 2
(N.M. Ct. App. June 30, 2008). The majority held that Defendant failed to preserve the issue
of Blake’s authority to detain him because he had only argued to the district court that Blake
was without the authority to arrest him. Id. at 6-7. The Court concluded that Blake’s
detention of Defendant did not amount to an arrest, and it therefore did not need to address
whether Blake had the authority to arrest. Id. at 12. Regarding the issue of Defendant’s
consent to the blood draw, the Court held that Defendant was not forced to submit to the test,
and therefore the blood draw evidence was not subject to suppression. Id. at 12-13.

{7} The dissent concluded that Defendant had preserved the issue of Blake’s illegal
detention of him. Id. at 17. In any case, the dissenting judge would have held that
Defendant was arrested by the PSA, who was not a commissioned police officer. Id. at 22
(Vigil, J., dissenting). Judge Vigil explained that:

The majority’s reasoning, with which I disagree, allows it to not
address the consequences of an illegal detention or arrest by a PSA officer.
I would address the merits of whether Defendant’s detention and arrest were
legal, and if they were not, the consequence. One consequence might be that
Defendant’s consent to the blood test was not sufficiently attenuated from
PSA Blake’s unconstitutional conduct. Without such an analysis, I do not
agree with the majority’s conclusion concerning Defendant’s consent to the
blood test.

Id. at 22-23. This Court granted certiorari and now addresses the two suppression issues.
State v. Slayton, 2008-NMCERT-008, 145 N.M. 255, 195 P.3d 1267.

II. DISCUSSION

A. DEFENDANT FAIRLY INVOKED A RULING ON THE ISSUE OF HIS
DETENTION

{8} The State asserts that Defendant argued only to the district court that Blake was
without authority to arrest him, a question separate and distinct from a determination of
whether Blake was authorized to detain him. It contends that the district court’s order
embodied only two rulings: (1) that Blake did not arrest Defendant; and (2) that Defendant’s
detention was reasonable under the Fourth Amendment. According to the State, the absence
of the district court’s express ruling on Blake’s authority to detain Defendant demonstrates

3
Defendant’s failure to adequately preserve that argument for consideration below.

{9} Defendant’s argument in the district court was that Blake’s actions, however
characterized, were unreasonable within the context of the Fourth Amendment. He
specifically argued that either “the arrest or detention of Defendant” was “illegal,” and
therefore all evidence obtained after his seizure should be suppressed. In addition to his
broad argument that his detention was unreasonable, Defendant also specifically argued that
“[t]he arrest and detention of Defendant [were] without proper police authority.”

{10} While Defendant’s argument could have been clearer, we believe that it was
sufficient to invoke a ruling from the district court on the issue of Blake’s authority to detain
him. See Rule 12-216(A) NMRA (“To preserve a question for review it must appear that a
ruling or decision by the district court was fairly invoked[.]”). Defendant focused the district
court’s attention on the fact that Blake was not a commissioned police officer, and therefore
lacked authority to detain or arrest him, making his seizure unreasonable within the context
of the Fourth Amendment. Indeed, the district court denied “Defendant’s Motion to
Suppress based upon an alleged unlawful arrest and detention by police officers[.]”
Therefore, we conclude that Defendant did preserve the issue of whether Blake had the
authority to detain him and, if not, whether exceeding that authority violated the Fourth
Amendment’s protections against unreasonable seizure.

B. BLAKE WAS WITHOUT STATUTORY AUTHORITY TO EITHER DETAIN
OR ARREST DEFENDANT

{11} “A ruling on a motion to suppress evidence presents a mixed question of law and
fact.” State v. Rivera, 2008-NMSC-056, ¶ 10, 144 N.M. 836, 192 P.3d 1213. This Court
reviews factual findings under a substantial evidence standard, viewing the facts in the light
most favorable to the prevailing party, and we review de novo whether the district court
correctly applied the law to the facts. Id. In this case, the district court made formal findings
of fact in its order denying Defendant’s motions. Neither party asserts that these findings
were made in error, and the pertinent factual findings are supported by the record. We
therefore accept these findings as conclusive. Davis v. Devon Energy Corp., 2009-NMSC-
048, ¶ 13, ___ N.M. ___, 218 P.3d 75 (“When there are no challenges to the district court’s
factual findings, we accept those findings as conclusive.”).

{12} Defendant’s argument that his seizure by Blake was unreasonable within the context
of the Fourth Amendment rests entirely on the assertion that Blake lacked the statutory
authority to detain or arrest anyone suspected of committing a crime. We believe that
Defendant would concede that if a commissioned police officer had seized him, his detention
and arrest would have been reasonable under the Fourth Amendment. Thus, Defendant’s
argument presents two separate issues: (1) whether Blake had the authority to seize
Defendant, because if she did, her actions were presumably reasonable under the Fourth
Amendment; and (2) if she did not have such authority, whether her lack of authority is an
unreasonable seizure under the Fourth Amendment, which would entitle Defendant to

4
application of the exclusionary rule. We address these arguments in turn.

{13} The State argues that there is nothing in the record to show that Blake’s actions were
unauthorized because Blake had the authority to seize Defendant for two reasons: (1) she
may be considered to have the authority to arrest by virtue of her status as a “peace officer”
under this Court’s decision in State v. Ogden, 118 N.M. 234, 245, 880 P.2d 845, 856 (1994);
and (2) she was acting on the express authority of the Roswell Police Department. We
disagree with both contentions.

{14} We are not persuaded by the State’s first argument, which relies on Ogden as support
for Blake’s authority to arrest Defendant. In Ogden we determined that a City of Farmington
Community Service Officer (CSO) was a “peace officer” within the context of the
aggravating circumstances statute, NMSA 1978, Section 31-20A-5(A) (1981). 118 N.M. at
245, 880 P.2d at 856. We concluded that by enacting the aggravating circumstances statute,
the Legislature intended “to protect a broader category of law enforcement officers than only
police officers.” Id. at 244, 880 P.2d at 855. Because “CSOs are charged with the duty to
maintain public peace or order” and “all of their responsibilities are of a peace-keeping
nature[,]” we held that the Legislature intended to include CSOs in the definition of “peace
officer” for the purpose of Section 31-20A-5(A). Ogden, 118 N.M. at 245-46, 880 P.2d at
856-57.

{15} While we recognized in Ogden that CSOs and, by extension, PSAs may perform
some police functions similar to those of commissioned officers, we did not endeavor to
identify the scope of these non-commissioned officers’ duties. In fact, in holding that the
aggravated circumstances statute protects a broader category of “peace officer” than simply
commissioned police officers, we implicitly recognized that CSOs, PSAs, and other auxiliary
officers or service aides are sometimes treated differently by virtue of their lack of
commission. In any case, the analysis of whether a PSA possesses the authority to seize a
person suspected of violating the Motor Vehicle Code or other laws regarding motor vehicles
presents a distinct issue of statutory construction that is only tangentially related to the
aggravated circumstances statute we addressed in Ogden. Therefore, although Blake was
likely a “peace officer” within the context of the aggravating circumstances statute, as a non-
commissioned employee of the Roswell Police Department, her authority to arrest
individuals suspected of violating the Motor Vehicle Code has been limited by the
Legislature.

{16} We are also not persuaded by the State’s second argument that Blake was acting with
the express authority of the Roswell Police Department. Any authority granted to Blake by
the City of Roswell to arrest individuals suspected of violating the Motor Vehicle Code
would be nullified by statutory authority to the contrary. See Stennis v. City of Santa Fe,
2008-NMSC-008, ¶ 21, 143 N.M. 320, 176 P.3d 309 (“[A] municipality may adopt
ordinances or resolutions not inconsistent with state law. A municipal ordinance does not
conflict with state law unless the ordinance permits an act the general law prohibits, or vice
versa.” (internal quotation marks and citations omitted)). The Legislature has expressly

5
stated that “[n]o person shall be arrested for violating the Motor Vehicle Code [66-1-1
NMSA 1978] or other law relating to motor vehicles punishable as a misdemeanor except
by a commissioned, salaried peace officer who, at the time of arrest, is wearing a uniform
clearly indicating the peace officer’s official status.” NMSA 1978, § 66-8-124(A) (1961,
prior to 2007 amendments). The Legislature intended that only commissioned officers may
arrest a person who is suspected of violating the Motor Vehicle Code. Therefore, any
municipal grant of authority to the contrary would “permit[] an act the general law prohibits”
and would be impermissible. Stennis, 2008-NMSC-008, ¶ 21 (internal quotation marks and
citations omitted).

{17} Here, it is undisputed that Blake was not a commissioned police officer. It is also
undisputed that Defendant was charged with second offense aggravated DWI, contrary to
Section 66-8-102, a misdemeanor. See § 66-8-102(F) (stating that second offense
aggravated DWI is punishable by up to 364 days in jail); NMSA 1978, § 30-1-6(B) (1963)
(“A crime is a misdemeanor if it is so designated by law or if upon conviction thereof a
sentence of imprisonment in excess of six months but less than one year is authorized.”).
Therefore, according to Section 66-8-124(A), Blake was without statutory authority to arrest
Defendant.

C. FOR PURPOSES OF SECTION 66-8-124(A), “ARREST” INCLUDES A
TEMPORARY DETENTION

{18} What constitutes an arrest under the provisions of Section 66-8-124(A) is pivotal to
our determination in this case. In its opinion, the Court of Appeals devotes a significant
amount of time distinguishing an arrest from a temporary detention and delineating when an
arrest has occurred. Slayton, No. 27,892, slip op. at 9-12. The Court of Appeals directs its
focus to State v. Werner, 117 N.M. 315, 871 P.2d 971 (1994), to determine at what point
“‘an investigatory seizure is invasive enough to constitute an arrest[.]’” Slayton, No. 27,892,
slip op. at 9 (quoting Werner, 117 N.M. at 317, 871 P.2d at 973). Though the definition of
arrest can be narrowly construed to include only custodial arrests, for the purpose of
determining which actions are governed by the Motor Vehicle Code, we have interpreted
“arrest” broadly to include not only custodial arrests but also temporary detentions.

{19} As used in Section 66-8-124(A), the term “arrest” does not refer solely to custodial
arrest or incarceration; it also includes a “temporary detention.” See State v. Ochoa, 2008-
NMSC-023, ¶ 15, 143 N.M. 749, 182 P.3d 130 (construing the misdemeanor arrest rule and
Section 66-8-123, “[w]e hold that the Court of Appeals improperly applied New Mexico’s
misdemeanor arrest rule to this case, because the ‘arrest’ at issue was an investigatory stop
for a seatbelt violation”); State v. Bricker, 2006-NMCA-052, ¶ 9, 139 N.M. 513, 134 P.3d
800 (“While the statute [NMSA 1978, Section 66-8-123 (1978, as amended through 1989)]
uses the words ‘arrest’ and ‘custody,’ we believe the Legislature intended those terms to
refer to a temporary detention rather than a traditional custodial arrest in which a person is
arrested and taken to the police station for booking.”); State v. Archuleta, 118 N.M. 160,
163, 879 P.2d 792, 795 (Ct. App. 1994) (construing Section 66-8-124(A), the Court

6
developed two tests to determine if the officer is in “uniform”; the second test evaluated
“whether the person stopped and cited either personally knows the officer or has information
that should cause him to believe the person making the stop is an officer with official
status”) (emphasis added); see also United States v. Gonzalez, 763 F.2d 1127, 1130 n.1 (10th
Cir. 1985) (construing Section 66-8-123: “Despite the statute’s use of the words ‘arrest’ and
‘custody,’ when a New Mexico police officer stops a car merely to issue a traffic summons
for a minor speeding infraction, we think that for Fourth Amendment purposes that stop is
more in the nature of an investigative detention than a traditional arrest.”).

{20} We have never interpreted the Legislature’s intent to restrict the term “arrest” in
Section 66-8-124 only to custodial arrests, and we believe that under Chapter 66 of the New
Mexico statutes, unless otherwise noted, “arrest” includes temporary detentions. See State
v. Marquez, 2008-NMSC-055, ¶ 11, 145 N.M. 1, 193 P.3d 548 (“Nothing in the Fresh
Pursuit Act indicates that the Legislature intended ‘authority to arrest’ to be limited to a
custodial arrest. In fact, reference to other statutes indicates that the Legislature intended
no such limit. Under NMSA 1978, Section 66-8-123(A) (1989), which provides for citations
in lieu of custodial arrest for certain violations of the Motor Vehicle Code, ‘a person is
arrested’ for the offense, ‘the arresting officer’ prepares the citation, ‘the arrested person’
signs the citation, and ‘the arrested person’ receives a copy of the citation before being
released.” (alterations omitted)); Archuleta, 118 N.M. at 162, 879 P.2d at 794 (construing
Section 66-8-124(A), “[i]t seems clear enough that the intention of the legislature in
requiring the officer to wear a uniform plainly indicating his official status was to enable the
motorist to be certain that the officer who stops him is, in fact, a police officer”). Therefore,
legislative intent and previous New Mexico case law leads us to conclude that temporary
detentions are covered under the term “arrest” as used in Chapter 66 as well as custodial
arrests, and Blake’s actions in detaining Defendant constitute an arrest under Section 66-8-
124(A). As a result, we need not address the de facto arrest analysis employed by the Court
of Appeals in this case.

D. BLAKE’S SEIZURE OF DEFENDANT WAS STATE ACTION

{21} Having determined that Blake did not have statutory authority to either detain or
arrest Defendant, we now address Defendant’s contention that Blake’s lack of authority
resulted in an unreasonable seizure under the Fourth Amendment. The State argues that if
Blake was acting without such statutory authority, she must have been acting as a private
citizen, and she was therefore authorized to arrest Defendant for a breach of the peace. See
State v. Arroyos, 2005-NMCA-086, ¶ 5, 137 N.M. 769, 115 P.3d 232 (“Any person . . . may
arrest another upon good-faith, reasonable grounds that a felony had been or was being
committed, or a breach of the peace was being committed in the person’s presence.”); see
also State v. Emmons, 2007-NMCA-082, ¶ 15, 141 N.M. 875, 161 P.3d 920 (noting that this
Court has “specifically declined to favor citizen’s arrest for breaches of the peace, stemming
from [our] concern that such an expansion of citizen power might likely lead to more
breaches of the peace and encourage vigilantism”). We understand the State to be arguing
that if Blake was acting in her capacity as a private citizen, then there was no state action for

7
purposes of the Fourth Amendment. See State v. Murillo, 113 N.M. 186, 188-89, 824 P.2d
326, 328-29 (Ct. App. 1991) (“The courts of New Mexico, like other jurisdictions, have
accepted the long-standing rule that the protections of the Fourth Amendment do not apply
to private individuals acting for their own purposes.” (footnote omitted)). We disagree.

{22} It is undisputed that Blake was acting in her capacity as an employee of the Roswell
Police Department when she investigated the traffic accident. She was dispatched to the
scene of the accident by the Roswell Police Department, and consistent with this directive,
searched for and found Defendant sitting in his truck in his driveway. However, her
authority to detain Defendant is less clear. Blake admitted that she did not have the authority
to arrest Defendant, but the record does not clearly reveal whether she had the authority to
detain him until a commissioned officer arrived to investigate the accident and make any
necessary arrests. Nevertheless, Blake stated that the Roswell Police Department employed
her to “do a lot of the same work that a certified officer would do,” including investigating
traffic accidents and crime scenes. In fact, PSAs such as Blake wear uniforms and drive
marked patrol cars.

{23} While on this record we cannot definitively determine that Blake was acting within
the express authority granted to her by the Roswell Police Department, we nonetheless
conclude that Blake’s actions were state actions because she was acting as an agent of the
Roswell Police Department when she detained Defendant in his driveway. “Although the
Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by
a private party on his own initiative, the Amendment protects against such intrusions if the
private party acted as an instrument or agent of the Government.” Skinner v. Ry. Labor
Executives’ Ass’n, 489 U.S. 602, 614 (1989). As we recently stated in State v. Santiago, to
determine whether a person is acting as an agent of the government, we consider “(1)
whether the government knew of and acquiesced in the intrusive conduct, and (2) whether
the party performing the search intended to assist law enforcement efforts or to further his
[or her] own ends.” 2009-NMSC-045, ¶ 18, ___ N.M. ___, 217 P.3d 89 (internal quotation
marks and citation omitted). We apply this same test to determine whether a seizure was
state action. See United States v. Snowadzki, 723 F.2d 1427, 1429 (9th Cir. 1984) (applying
the same factors “[t]o determine whether a private person acted as a government agent in an
illegal search and seizure”).

{24} The sole reason Blake undertook to investigate and ultimately detain Defendant was
due to her employment by the Roswell Police Department and her directive to investigate
the accident. Although Blake exceeded the scope of her authority in detaining Defendant
while waiting for commissioned officers to arrive, the government initiated her investigation
and acquiesced in its results. Furthermore, acting in her capacity as an employee of the
Roswell Police Department, Blake’s intentions were to assist the government in arresting
Defendant for DWI. Thus, although Blake was without statutory authority to detain and
arrest Defendant, she nonetheless was acting as an agent of the government when she seized
him. Cf. People v. Rosario, 585 N.E.2d 766, 768-69 (N.Y. 1991) (non-commissioned
auxiliary officers are “fellow officers” for the purpose of providing information for

8
commissioned officers to make warrantless arrests that comport with the requirements of the
Fourth Amendment). We now must determine whether her lack of statutory authority has
Fourth Amendment implications.

{25} Before doing so, however, we are compelled to address a conflict in our case law that
arises by virtue of our holding in this case that only commissioned peace officers may seize
persons suspected of violating provisions of “the Motor Vehicle Code . . . or other law
relating to motor vehicles punishable as a misdemeanor[.]” Section 66-8-124(A). In
Arroyos, the Court of Appeals held that a deputy marshal acting outside of the territorial
jurisdiction of his commission was authorized to detain a driver for suspected DWI, a
misdemeanor breach of the peace. 2005-NMCA-086, ¶¶ 2-5, 9, 11. The Court reached its
conclusion by construing NMSA 1978, Section 3-13-2 (1988), which limited the marshal’s
territorial jurisdiction as “not divesting the officers of their common law right as citizens to
make arrests or detentions.” Id. ¶ 8. Arroyos did not address any provisions of the Motor
Vehicle Code that might affect a citizen’s authority to arrest another person for suspected
violations of that statute, a matter we addressed earlier in this opinion.

{26} As we explained above, the common law right to citizen’s arrest for suspected
violations of the Motor Vehicle Code and other misdemeanor motor vehicle laws has been
abrogated by the Legislature. See NMSA 1978, § 66-1-4.14(J) (1990, as amended through
1999) (“‘police or peace officer’ means every officer authorized to direct or regulate traffic
or to make arrests for violations of the Motor Vehicle Code”); § 66-8-124(A) (“No person
shall be arrested for violating the Motor Vehicle Code . . . or other law relating to motor
vehicles punishable as a misdemeanor except by a commissioned, salaried peace officer who,
at the time of arrest, is wearing a uniform clearly indicating the peace officer’s official
status.”). DWI is a violation of the Motor Vehicle Code. Section 66-8-102. Therefore,
citizens’ arrests for DWI are not legal. To the extent that Arroyos suggests that a private
citizen, including a commissioned peace officer acting outside the scope of his or her
territorial jurisdiction, may make a citizen’s arrest for suspected violations of motor vehicle
laws, it and any other cases so holding are overruled.

{27} We recognize that NMSA 1978, Section 66-8-127 (1978) suggests that the
Legislature may have intended to retain citizens’ common law ability to arrest for
misdemeanors committed in their presence by providing that “the procedure prescribed [in
Sections 66-8-122 through -125] is not exclusive of any other method prescribed by law for
the arrest and prosecution of a person violating these laws.” However, construing Section
66-8-127 to allow citizens’ arrests would render meaningless the mandate in Section 66-8-
124(A) that a peace officer must make arrests for violations of the Motor Vehicle Code and
other laws relating to motor vehicles that are punishable as misdemeanors. Because “[w]e
will reject an interpretation of a statute that makes parts of it . . . meaningless[,]” State v.
Herbstman, 1999-NMCA-014, ¶ 20, 126 N.M. 683, 974 P.2d 177, we believe that in setting
forth the specific arrest procedures in Section 66-8-124, the Legislature intended to abrogate
the common law right to citizens’ arrests for suspected violations of motor vehicle laws. See
Bricker, 2006-NMCA-052, ¶¶ 12, 14 (holding that Section 66-8-127 does not incorporate

9
the common law misdemeanor arrest rule for offenses governed by Section 66-8-123(A),
which requires the arresting officer to issue a citation and release the person from custody,
because such an interpretation of Section 66-8-127 would render the mandate of Section 66-
8-123(A) meaningless). Therefore, Section 66-8-127 does not operate to allow citizens’
arrests for violations of the Motor Vehicle Code and other laws relating to motor vehicles.

E. BLAKE’S UNAUTHORIZED SEIZURE OF DEFENDANT DID NOT
VIOLATE THE FOURTH AMENDMENT

{28} We next address whether Blake’s seizure of Defendant was unreasonable under the
Fourth Amendment of the United States Constitution solely because she acted without
statutory authority to either detain or arrest him. The Court of Appeals recently addressed
a similar issue in Bricker where the defendant, who was driving with a suspended license,
was placed under custodial arrest and taken to the police station instead of being issued a
citation and then released from custody, as required by statute. 2006-NMCA-052, ¶¶ 1, 2,
8. The Court concluded that “[t]he custodial arrest of Defendant violated Section 66-8-
123(A) and was therefore unlawful. However, this holding alone does not resolve the
question of whether the evidence obtained from the search of Defendant’s wallet should have
been suppressed.” Id. ¶ 14. To answer that question “requires an analysis of whether the
unlawful custodial arrest violated the Fourth Amendment to the United States Constitution
or Article II, Section 10 of our State Constitution.” Id.

{29} In Bricker, the State argued that “an arrest in violation of a statute does not elevate
the issue to a constitutional level.” Id. ¶ 19 (citing People v. Lyon, 577 N.W.2d 124, 129
(Mich. Ct. App. 1998) for the proposition that the exclusionary rule is only compelled by the
Fourth Amendment if the seizure was constitutionally invalid, based on a lack of probable
cause, and not merely statutorily illegal). The Court agreed, stating that “[w]ere we to be
guided solely by federal law interpreting the Fourth Amendment, the custodial arrest of
Defendant would be reasonable. Under the Fourth Amendment, the constitutional
reasonableness of a custodial arrest is measured by whether probable cause existed for the
arrest.” Id. ¶ 21. The Bricker Court quoted Atwater v. City of Lago Vista, 532 U.S. 318,
354 (2001) to set forth the principles of reasonableness under the Fourth Amendment:

[T]he United States Supreme Court [has] held fast with probable cause as the
test of reasonableness, “without the need to balance the interests and
circumstances involved in particular situations. . . . If an officer has probable
cause to believe that an individual has committed even a very minor criminal
offense in his presence, he may, without violating the Fourth Amendment,
arrest the offender.”

Bricker, 2006-NMCA-052, ¶ 21. Notwithstanding its Fourth Amendment analysis, the Court
of Appeals ultimately concluded that the defendant’s custodial arrest violated Article II,
Section 10 of the New Mexico Constitution and suppressed the evidence as unlawfully
seized. Id. ¶ 30.

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{30} A few years after Bricker was filed, the United States Supreme Court ratified the
Court of Appeals’ decision. In a factual scenario essentially identical to the facts before the
Court in Bricker, the United States Supreme Court relied in part on Atwater to hold that the
defendant’s custodial arrest, in violation of a Virginia statute that required him to have been
issued a citation and then released, did not offend the Fourth Amendment because it was
supported by probable cause. Virginia v. Moore, ___ U.S. ___, ___, 128 S. Ct. 1598, 1608
(2008). The United States Supreme Court stated that “[W]hether or not a search is
reasonable within the meaning of the Fourth Amendment . . . has never depend[ed] on the
law of the particular State in which the search occurs.” Id. at ___, 128 S. Ct. at 1604
(internal quotation marks and citation omitted, alterations in original). This same principle
is true in the context of seizures. Id. at ___, 128 S. Ct. at 1604-05. The Court concluded that
“warrantless arrests for crimes committed in the presence of an arresting officer are
reasonable under the Constitution, and that while States are free to regulate such arrests
however they desire, state restrictions do not alter the Fourth Amendment’s protections.”
Id. at ___, 128 S. Ct. at 1607. “When officers have probable cause to believe that a person
has committed a crime in their presence, the Fourth Amendment permits them to make an
arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.”
Id. at ___, 128 S. Ct. at 1608.

{31} The Supreme Court’s decision in Moore rested on the premise that “[i]ncorporating
state-law arrest limitations into the Constitution would produce a constitutional regime” that
would “vary from place to place and from time to time[.]” Id. at ___, 128 S. Ct. at 1606,
1607 (internal quotation marks and citation omitted). This is because what would be
permissible under the Fourth Amendment in one state might not be permissible in another.
“Fourth Amendment protections are not so variable and cannot be made to turn upon such
trivialities[,]” such as “local law enforcement practices[.]” Id. at ___, 128 S. Ct. at 1605
(internal quotation marks and citation omitted). Rather, the Fourth Amendment places
“great weight” on the “essential interest in readily administrable rules.” Id. at ___, 128 S.
Ct. at 1606 (internal quotation marks and citation omitted). Simply put, “it is not the
province of the Fourth Amendment to enforce state law.” Id. at ___, 128 S. Ct. at 1608.

{32} The glaring difference between the facts present in Bricker and Moore and those in
Defendant’s case is that here, Defendant was not detained by a commissioned officer. The
issue before us is whether the Fourth Amendment would treat a violation of a state law
restricting who may seize a person differently from a state law concerning whether a person
may be taken into custodial arrest by an otherwise authorized officer. Given the broad
language of the United States Supreme Court’s recent decision in Moore, we do not believe
that the Fourth Amendment would distinguish between state laws purporting to address a
seizure’s lawfulness. The only inquiry of consequence to the Fourth Amendment is whether
the state actor has reasonable suspicion to detain or probable cause to arrest the defendant
for a crime committed in his or her presence.

{33} Our conclusion that the Fourth Amendment is not concerned with a state actor’s
violation of a statute governing who may seize a person suspected of committing a crime is

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supported by analogous cases from other jurisdictions reaching the same conclusion. See,
e.g., People v. Hamilton, 666 P.2d 152, 156-57 (Colo. 1983) (en banc) (holding that an arrest
supported by probable cause but made by officers acting in violation of a statute restricting
their territorial jurisdiction did not violate the Fourth Amendment); Moore v. State, 798
S.W.2d 87, 89-90 (Ark. 1990) (finding that a citation issued by an officer who did not meet
the statutory qualifications to serve as a police officer did not offend the Fourth
Amendment), overruled on other grounds by Grillot v. State, 107 S.W.3d 136, 145 (Ark.
2003); State v. Droste, 697 N.E.2d 620, 622-23 (Ohio 1998) (holding that a DWI arrest made
by liquor control investigators who did not have statutory authority to stop a driver for
violating traffic laws was nonetheless constitutional under the Fourth Amendment because
it was supported by probable cause). Therefore, we hold that an arrest made by a state actor
in violation of a statute is not per se a violation of the Fourth Amendment. See Droste, 697
N.E.2d at 623 (“[A]bsent a violation of a constitutional right, the violation of a statute does
not invoke the exclusionary rule.”). The pertinent question is whether the state actor who
seized the defendant had “probable cause to believe that a person has committed a crime in
their presence[.]” Moore, ___ U.S. at ___, 128 S. Ct. at 1608.

{34} Defendant does not present any additional arguments that his seizure was
unconstitutional under the Fourth Amendment. His sole argument on appeal to this Court
is that his seizure was unconstitutional because Blake was without statutory authority to
either detain or arrest him. Therefore, we do not address any other arguments relating to the
lawfulness of his detention and subsequent arrest, such as whether his arrest was supported
by probable cause. We hold that Blake’s lack of statutory authority to seize Defendant did
not violate Defendant’s Fourth Amendment protections against unreasonable seizures.

F. DEFENDANT’S CONSENT TO THE BLOOD TEST WAS VALID

{35} Defendant argues that the results of his blood test should be suppressed because the
test was taken without his voluntary consent. He admits that he ultimately consented to the
blood draw. However, he argues that his consent was not valid because it was the product
of duress and coercion. We disagree.

{36} The record shows that once Defendant was arrested at the hospital, he was asked
“more than twice” if he would consent to a blood draw and that he refused these “numerous”
requests. However, after Defendant had been evaluated and scheduled for release from the
emergency room, the arresting officer gave him a “last chance” to consent to the blood draw.
The officer explained to him that if he did not consent to the blood draw, he would be
charged with aggravated DWI and, if he were to be convicted, the consequences of that
conviction. Defendant then consented to have his blood drawn.

{37} The Court of Appeals affirmed the district court’s denial of Defendant’s motion to
suppress the results of his blood draw. Slayton, No. 27,892, slip op. at 12-13. The Court of
Appeals concluded that “Defendant only had the right ‘not to be forcibly tested after

12
manifesting refusal.’” Id. at 12 (quoting McKay v. Davis, 99 N.M. 29, 30, 653 P.2d 860, 861
(1982). We agree.

Any person who operates a motor vehicle within this state shall be
deemed to have given consent, subject to the provisions of the Implied
Consent Act [66-8-105 NMSA 1978], to chemical tests of his breath or blood
or both . . . for the purpose of determining the drug or alcohol content of his
blood if arrested for any offense arising out of the acts alleged to have been
committed while the person was driving a motor vehicle while under the
influence of an intoxicating liquor or drug.

NMSA 1978, § 66-8-107(A) (1978, as amended through 2003). The Implied Consent Act
also provides that if a person refuses to submit to a breath or blood test, “none shall be
administered except when a municipal judge, magistrate or district judge issues a search
warrant authorizing chemical tests as provided in Section 66-8-107 NMSA 1978[.]” NMSA
1978, § 66-8-111(A) (1978, as amended through 2005). This right, however, is a only a right
“not to be forcibly tested after manifesting refusal.” McKay, 99 N.M. at 30, 653 P.2d at 861.

{38} Defendant does not argue that he was forcibly tested. Rather, he argues that his
consent was coerced by the arresting officer’s explanation that if he did not consent, he
would be charged with aggravated DWI. As explained previously, Defendant’s implied
consent to the blood draw was given when he got behind the wheel and took to the road. As
a result, any coercion affecting his consent would be to his willingness to drive the vehicle,
not to submit to the blood test. Therefore, because Defendant was neither forcibly tested nor
coerced to drive his vehicle, he consented pursuant to the Implied Consent Act, regardless
of the officer’s representations of the consequences of his failure to submit.

III. CONCLUSION

{39} Although Blake did not have statutory authority to detain or arrest Defendant for
suspected DWI, her lack of authority did not by itself amount to a violation of the Fourth
Amendment’s protections against unreasonable seizure. Defendant’s consent to have his
blood drawn was valid. Therefore, we affirm his conviction.

{40} IT IS SO ORDERED.

____________________________________
EDWARD L. CHÁVEZ, Chief Justice

WE CONCUR:

____________________________________
PATRICIO M. SERNA, Justice

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____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
CHARLES W. DANIELS, Justice

Topic Index for State v. Michael Slayton, No. 31,244

AE APPEAL AND ERROR

AE-PA Preservation of Issues for Appeal

CT CONSTITUTIONAL LAW

CT-FA Fourth Amendment
CT-SU Suppression of Evidence

CL CRIMINAL LAW

CL-DG Driving While Intoxicated
CL-MH Motor Vehicle Violations

CA CRIMINAL PROCEDURE

CA-AT Arrest
CA-CZ Citizen’s Arrest
CA-DN Detention or Custody
CA-IC Implied Consent
CA-MR Motion to Suppress
CA-PO Peace Officer
CA-PA Probable Cause
CA-SZ Search and Seizure
CA-WA Warrantless Arrest

EV EVIDENCE

EV-BT Blood/Breath Tests
EV-SU Suppression of Evidence

GV GOVERNMENT

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GV-PE Public Employees

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