State v. Harrison

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-038

Filing Date: June 8, 2010

Docket No. 31,224

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

DAVID HARRISON,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Thomas J. Hynes, District Court Judge

Hugh W. Dangler, Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM

for Petitioner

Gary K. King, Attorney General
Andrew S. Montgomery, Assistant Attorney General
Santa Fe, NM

for Respondent
Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, L.L.P.
Richard W. Hughes
Santa Fe, NM

for Amicus Curiae
Pueblo of Santa Ana

Marcelino R. Gomez
Paul M. Spruhan
Window Rock, AZ

for Amicus Curiae

1
Navajo Nation

OPINION

MAES, Justice.

{1} In this appeal, we must determine whether a state, county, or local peace officer,1
who is not cross-commissioned with the Bureau of Indian Affairs (BIA) or an Indian nation,
tribe, or pueblo, see NMSA 1978, § 29-1-11 (2005), has the authority to pursue an Indian
into Indian country to investigate an off-reservation crime committed in the officer’s
presence. We conclude that state officers have the authority to enter Indian country to
investigate off-reservation crimes committed by Indians, so long as their investigation does
not infringe on tribal sovereignty by circumventing or contravening a governing tribal
procedure. Because the state officer’s investigation in this case did not circumvent or
contravene any governing tribal procedures codified in the Navajo Nation Code, we affirm
the conviction of David Harrison (Defendant) for driving while intoxicated (DWI) in
violation of NMSA 1978, Section 66-8-102 (1953, as amended through 2005).

I. FACTS AND PROCEDURAL HISTORY

{2} On August 31, 2005, at approximately 10:30 a.m., Emerson T. Charley, Jr., a deputy
with the San Juan County Sheriff’s Office, was on patrol duty on County Road 6675 in San
Juan County, New Mexico. Deputy Charley was driving east on the county road when he
noticed a westbound vehicle traveling at a high rate of speed. Using his radar, Deputy
Charley determined that the vehicle was traveling fifty-six miles per hour in a thirty-five
miles per hour zone. Deputy Charley engaged the emergency lights on his patrol car, turned
around, and followed the vehicle “to let the driver know that [he] was actually going to try
to stop him.” After the vehicle failed to yield, Deputy Charley activated and changed the
tone of his siren to get the driver’s attention. However, the vehicle continued driving
westbound, crossing a bridge that separates San Juan County from the Navajo Reservation.
While crossing the bridge, Deputy Charley observed a large clear bottle containing yellow
liquid being tossed out of the passenger side window. The vehicle finally stopped one-third
of a mile into the Navajo Reservation.

{3} Deputy Charley approached the vehicle and noticed that the driver, Defendant, had
blood-shot, watery eyes and smelled moderately of alcoholic beverage. Deputy Charley
asked Defendant what he had thrown out of the passenger side window, and Defendant
responded that it was a bottle of Budweiser. At this point, Deputy Charley asked Defendant
to exit the vehicle and perform a series of field sobriety tests. First, Defendant performed
the walk and turn test, during which Deputy Charley observed two clues of

1
For ease of reference, we hereinafter refer collectively to state, county, and local
peace officers as “state officers.”

2
impairment—Defendant miscounted and used his arms for balance. Second, Defendant
performed the one-legged stand test, during which Deputy Charley again observed two clues
of impairment—Defendant miscounted and dropped his foot three times. On the basis of his
training and experience as a patrol officer, Deputy Charley determined that Defendant had
been driving while intoxicated.

{4} At some point during the stop, Deputy Charley learned that Defendant was a member
of the Navajo Nation. Deputy Charley knew that he had no authority to arrest a Navajo
Nation member on the Navajo Reservation, so he contacted the Navajo Police Department
for assistance. However, the Navajo Police Department was unable to provide assistance,
and Deputy Charley testified that “the only thing [he] could do was have [Defendant] try to
find a ride. [Defendant] attempted to make a phone call, wasn’t able to find somebody, and
he decided he was going to walk back to some family’s residence.”

{5} Deputy Charley subsequently secured an arrest warrant, which was executed in
compliance with Navajo Nation Code requirements. Defendant was charged by criminal
complaint in state court with a fourth or subsequent offense of DWI contrary to Section 66-
8-102. Following a jury trial, Defendant was convicted of DWI and sentenced to three years
of imprisonment.

{6} Defendant appealed from the judgment of the trial court to the Court of Appeals,
claiming that “the evidence of his performance on field sobriety tests should have been
suppressed because they were administered by a state police officer who is not cross-
commissioned with the Bureau of Indian Affairs (BIA) or the Navajo Nation, Defendant is
Navajo, and the tests were administered following a stop on the Navajo Nation.” State v.
Harrison, 2008-NMCA-107, ¶ 1, 144 N.M. 651, 190 P.3d 1146. The Court of Appeals
acknowledged that Deputy Charley lacked the authority to arrest Defendant on the Navajo
Reservation, but nonetheless concluded that he “had authority to stop Defendant on the
Navajo Reservation to investigate the traffic offense he observed off the Navajo Reservation
and to determine if Defendant was a member of the Navajo Nation.” Id. ¶¶ 8, 11; see United
States v. Patch, 114 F.3d 131, 133-34 (9th Cir. 1997). The Court further concluded that the
field sobriety tests did not violate the Fourth Amendment to the United States Constitution
because Defendant performed the tests voluntarily. Harrison, 2008-NMCA-107, ¶ 14.
Accordingly, the Court held that Defendant’s jurisdictional claim was moot and affirmed
Defendant’s conviction and sentence. Id. ¶¶ 14, 16.

{7} We granted Defendant’s petition for writ of certiorari pursuant to NMSA 1978,
Section 34-5-14(B) (1972) and Rule 12-502 NMRA to determine whether a state officer,
who is not cross-commissioned with the BIA or the Navajo Nation, has the authority to enter
the Navajo Reservation and investigate an off-reservation crime committed by a member of
the Navajo Nation. State v. Harrison, 2008-NMCERT-008, 145 N.M. 255, 195 P.3d 1267.

II. DISCUSSION

3
{8} Defendant committed the crime of DWI on both state and tribal land. However,
Deputy Charley acquired the evidence supporting Defendant’s DWI conviction from a traffic
stop and investigation conducted exclusively in Indian country.2 Defendant and Amici
Curiae, the Navajo Nation and the Pueblo of Santa Ana, concede that Deputy Charley had
the authority to stop Defendant in Indian country and detain him pending the arrival of the
Navajo police. However, they argue that Deputy Charley exceeded the scope of his
authority by conducting a brief criminal investigation in Indian country, which included the
administration of field sobriety tests. Additionally, the Pueblo of Santa Ana claims that
Deputy Charley’s administration of field sobriety tests constituted a de facto arrest, which
violated tribal sovereignty under New Mexico law.

{9} The authority of state officers to investigate off-reservation crimes in Indian country
is a question of law, which we review de novo. See State v. Ochoa, 2008-NMSC-023, ¶ 10,
143 N.M. 749, 182 P.3d 130 (2008) (“The application and interpretation of law is subject
to a de novo review.”). Although our state judiciary has addressed this issue before, our
analysis is also guided by federal law, because “the laws of the United States ‘shall be the
supreme Law of the Land; and the Judges in every State shall be bound thereby. . . .’” State
v. Romero, 2006-NMSC-039, ¶ 7, 140 N.M. 299, 142 P.3d 887 (quoting U.S. Const. art. VI,
cl. 2); see also Cohen’s Handbook of Federal Indian Law § 5.01[1] (Nell Jessup Newton ed.
2005) (“The supremacy clause ensures that laws regulating Indian affairs and treaties with
tribes supersede conflicting state laws or state constitutional provisions.”).

A. Preservation

{10} “To preserve a question for review it must appear that a ruling or decision by the
district court was fairly invoked . . . .” Rule 12-216(A) NMRA. “Matters outside the record
present no issue for review.” State v. Smith, 92 N.M. 533, 536, 591 P.2d 664, 667 (1979).
As the appellant, it is Defendant’s burden to provide this Court with a brief statement
“explaining how the issue [on appeal] was preserved in the court below, with citations to
authorities, record proper, transcript of proceedings or exhibits relied on.” Rule 12-
213(A)(4) NMRA. “When an issue is not preserved in this manner, our review generally is
limited to consideration of jurisdictional questions, issues of general public interest, or
matters involving fundamental error or fundamental rights of a party.” State v. Foster,
1999-NMSC-007, ¶ 47, 126 N.M. 646, 974 P.2d 140; see also Rule 12-216(B).

{11} Defendant’s brief-in-chief fails to include the requisite statement regarding
preservation. However, the trial transcript reveals that, at the beginning of the trial,
Defendant requested and received a continuing objection on his “Motion to Suppress
Evidence based on the fact that [Defendant] was pulled over on the reservation.” The record
proper and trial transcript contain no further information regarding Defendant’s suppression

2
It is undisputed that the Navajo Nation satisfies the statutory definition of “Indian
country” set forth in 18 U.S.C. § 1151 (2006).

4
motion or the trial court’s ruling. Thus, on the record before us, we do not know what
evidence Defendant sought to suppress, the basis for the trial court’s ruling, or whether the
challenged evidence ultimately was presented to the jury. In the absence of such
information, we are compelled to conclude that Defendant’s claim was not preserved for
appellate review.

{12} Nonetheless, we exercise our discretion under Rule 12-216(B) “to consider an issue
not preserved below under the general public interest exception.” State v. Pacheco, 2007-
NMSC-009, ¶ 11, 141 N.M. 340, 155 P.3d 745. “Although this exception should be used
sparingly,” id., we do so in this case because of the important public interest in defining the
state’s authority to pursue an Indian into Indian country to investigate off-reservation crimes.
In the absence of guidance from this Court, state officers run the risk of infringing on tribal
sovereignty, a result which cannot be sanctioned. Farmington v. Benally (Benally II), 119
N.M. 496, 499, 892 P.2d 629, 632 (Ct. App. 1995). Accordingly, we review the merits of
Defendant’s claim on appeal.

B. State Criminal Jurisdiction in Indian Country

{13} “As a general principle, a state does not have jurisdiction over crimes committed by
an Indian in Indian country.” State v. Frank, 2002-NMSC-026, ¶ 12, 132 N.M. 544, 52 P.3d
404. However, a state generally has jurisdiction over crimes committed by an Indian off the
reservation. See State v. Quintana, 2008-NMSC-012, ¶ 9, 143 N.M. 535, 178 P.3d 820;
Blatchford v. Gonzales, 100 N.M. 333, 339, 670 P.2d 944, 950 (1983); see also Kake v.
Egan, 369 U.S. 60, 75 (1962) (“It has never been doubted that States may punish crimes
committed by Indians, even reservation Indians, outside of Indian country.”). When a crime
occurs both inside and outside of Indian country, state courts acquire concurrent jurisdiction
with tribal and federal courts. See State v. Clark, 2000-NMCA-052, ¶ 5, 129 N.M. 194, 3
P.3d 689 (“New Mexico has historically held that it . . . has jurisdiction over crimes that
[begin in Indian country and] continue into State territory.”); Cohen’s, supra, § 9.06 (“Most
courts addressing this issue have concluded that when a crime occurs both inside and outside
of Indian country, state courts acquire concurrent jurisdiction over the crimes that occurred
at least partially within the state’s territorial jurisdiction.”).

{14} Although a state lacks jurisdiction over crimes committed by Indians in Indian
country, a state has limited jurisdiction over crimes committed by non-Indians in Indian
country. Specifically, a state has jurisdiction over “crimes by non-Indians against
non-Indians . . . and victimless crimes by non-Indians.” Solem v. Bartlett, 465 U.S. 463, 465
n.2 (1984) (citation omitted); see also Draper v. United States, 164 U.S. 240, 245 (1896)
(holding that the states have exclusive jurisdiction over the murder of a non-Indian by a non-
Indian in Indian country); United States v. McBratney, 104 U.S. 621, 624 (1881) (same).
Because most traffic offenses are victimless crimes, “in which neither an Indian nor Indian
property is involved,” the states have subject matter jurisdiction to adjudicate these offenses
in state court. Cohen’s, supra, § 9.03[1]; see also State v. Warner, 71 N.M. 418, 421-22, 379
P.2d 66, 68-69 (1963) (holding that DWI is a victimless crime and, therefore, the state had

5
jurisdiction to arrest and prosecute a non-Indian defendant who committed the offense of
DWI in Indian country). But see State v. Branham, 2004-NMCA-131, ¶¶ 2, 16, 136 N.M.
579, 102 P.3d 646 (holding that a state police officer had no authority to arrest and charge
the non-Indian defendant with the crimes of DWI, driving with a suspended or revoked
license, resisting, evading or obstructing an officer, and speeding because those crimes were
committed in Indian country).

1. State Officer’s Authority to Stop a Vehicle in Indian Country

{15} We are not bound by Defendant’s and Amici Curiae’s concession regarding Deputy
Charley’s authority to stop Defendant’s vehicle in Indian country. Foster, 1999-NMSC-007,
¶ 25. Accordingly, we take this opportunity to examine a state officer’s authority to stop a
vehicle in Indian country for a traffic violation committed in the officer’s presence.

{16} We find the Ninth Circuit Court of Appeals’ opinion in Patch to be instructive. The
defendant in Patch was Indian, and “[a]ll material acts, including the alleged traffic
violation, took place in Indian country.” 114 F.3d at 132. The state police officer pursued
the defendant’s vehicle to determine “whether the driver was a tribal member, whom [the
officer] had no authority to arrest, or a nonmember, whom he could arrest for traffic
violations on a state highway.” Id. at 132-33. The defendant refused to stop, but drove to
his sister’s house, where a physical altercation between the defendant and the officer ensued.
Id. at 133. As a result, the defendant was charged with simple assault in violation of 18
U.S.C. § 113(a)(5) (1994). On appeal, the defendant claimed that the state police officer had
no authority to pursue and stop his vehicle in Indian country. Patch, 114 F.3d at 134.

{17} The Ninth Circuit Court of Appeals noted that, “[a]s a practical matter, without a stop
and inquiry, it is impossible for [a state] officer to tell who is operating an offending
vehicle.” Id. at 133-34. The Court held that such a stop and inquiry is a logical application
of Terry v. Ohio, 392 U.S. 1 (1968), because the state officer

needed to make only a brief stop to ascertain [the defendant’s] identity. Such
a stop would be a brief, limited detention to ask one question. Like the stop
in Terry, its purpose would further a legitimate law enforcement objective:
to determine whether the suspect was a tribal member. [The state officer]
had the authority under Terry to stop vehicles . . . to determine his
jurisdiction to issue a citation.

Patch, 114 F.3d at 134.; cf. State v. Schmuck, 850 P.2d 1332, 1335 (Wash. 1993) (en banc)
(holding that tribal sovereignty “necessarily includes the authority to stop a driver on the
reservation to investigate a possible violation of tribal law and determine if the driver is an
Indian, subject to the jurisdiction of that law”).

{18} We agree with the conclusion of the Ninth Circuit Court of Appeals that a state
officer has the authority to stop an offending vehicle in Indian country to determine whether

6
the officer has jurisdiction to investigate and enforce violations of the traffic code. Patch,
114 F.3d at 134. In this case, Deputy Charley observed Defendant speeding off-reservation
and throwing a clear bottle of yellow liquid out the passenger side window of his vehicle.
Accordingly, Deputy Charley had the authority to stop Defendant’s vehicle on the Navajo
Reservation to determine the scope of his authority to investigate the off-reservation traffic
offenses committed in his presence.

2. Scope of a State Officer’s Authority to Investigate in Indian Country an Off-
Reservation Traffic Offense Committed by an Indian

{19} Having determined that Deputy Charley had the authority to stop Defendant’s vehicle
in Indian country, we next address the scope of Deputy Charley’s authority to investigate the
off-reservation traffic offenses committed in his presence. The scope of a state officer’s
investigative authority in Indian country necessarily is dependent on the scope of the state’s
criminal jurisdiction, which, in turn, is dependent on two factors: (1) whether the defendant
is Indian or non-Indian, and (2) whether the traffic violation occurred inside or outside of
Indian country. See Cohen’s, supra, § 9.07 (“The investigative authority of officers is . . .
generally limited to the criminal jurisdiction of their government.”). If the defendant is non-
Indian and the traffic offense was victimless in nature, then the state officer has full authority
to conduct a complete criminal investigation, regardless of whether the violation occurred
inside or outside of Indian country. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191,
212 (1978) (“Indian tribes do not have inherent jurisdiction to try and to punish
non-Indians.”), superseded in part by statute on other grounds as stated in United States v.
Lara, 541 U.S. 193, 205-07 (2004). This is because the state has criminal jurisdiction over
crimes committed by non-Indians outside of Indian country and victimless crimes committed
by non-Indians inside of Indian country. However, if the defendant is Indian and the traffic
offense occurred inside of Indian country, as in Patch, then the state officer’s investigative
authority is limited to ascertaining the defendant’s identity and detaining the defendant
pending the arrival of the proper authorities. See Patch, 114 F.3d at 134. This is because
the state lacks jurisdiction over crimes committed by Indians inside of Indian country.

{20} The more complicated question, and the one presented in this case, is the scope of
a state officer’s authority to investigate traffic offenses committed by an Indian outside of
Indian country. As previously explained, the state has jurisdiction over off-reservation
crimes committed by Indians. However, a state officer’s investigative authority in Indian
country necessarily is limited by tribal sovereignty; i.e., “the right of reservation Indians to
make their own laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 220 (1959); see
also Nevada v. Hicks, 533 U.S. 353, 366 (2001) (holding that state jurisdiction to investigate
off-reservation crimes in Indian country is not federally preempted, because “[n]othing in
the federal statutory scheme prescribes, or even remotely suggests, that state officers cannot
enter a reservation (including Indian-fee land) to investigate or prosecute violations of state
law occurring off the reservation”). To resolve the issue on appeal, we must determine
whether Deputy Charley’s actions, administering field sobriety tests to an Indian driver in
Indian country, violated the tribal sovereignty of the Navajo Nation.

7
{21} We begin our analysis with Benally v. Marcum (Benally I), in which state officers
pursued and arrested an Indian driver on the Navajo Nation for off-reservation traffic
violations committed in the officers’ presence. 89 N.M. 463, 464-66, 553 P.2d 1270, 1271-
73 (1976), holding limited in part by Benally II, 119 N.M. at 499, 892 P.2d at 632. This
Court noted that, under the Navajo Tribal Code, only Navajo police officers had the
authority to apprehend an “‘Indian [who] has committed a crime outside of Indian Country
and is present in the Navajo ‘Indian Country’ and using it as an asylum from prosecution by
the state.’” Id. at 464-65, 553 P.2d at 1271-72 (quoting Navajo Tribal Code, tit. 17, § 1001
(1970)). We held that Defendant’s arrest violated the tribal sovereignty of the Navajo Nation
“because it circumvented and was contrary to the orderly procedure for extradition from the
Navajo Reservation provided for in” the Navajo Tribal Code. Id. at 464, 553 P.2d at 1271.

{22} Our holding in Benally I was “based on the existence of a valid procedure for
extradition in the Navajo Tribal Code.” Benally II, 119 N.M. at 498, 892 P.2d at 631; see
also State v. Yazzie, 108 N.M. 677, 679, 777 P.2d 916, 918 (Ct. App. 1989) (“Benally [I]
held that when an Indian commits a crime off-reservation, and is located on the reservation,
tribal extradition procedures must be followed. If they are not, the arrest is illegal.”). Where
a valid extradition procedure exists, the arrest of an Indian on Indian land is illegal,
regardless of whether the state officers are in fresh pursuit, Benally II, 119 N.M. at 498, 892
P.2d at 631, or whether the state’s “interests are great and a serious crime is involved,”
Yazzie, 108 N.M. at 679, 777 P.2d at 918.

{23} Most courts that have addressed a state officer’s authority to conduct criminal
investigations in Indian country also “have found that a determination of whether such an
exercise of state authority infringes on tribal sovereignty turns on the existence of a
governing tribal procedure.” State v. Mathews, 986 P.2d 323, 337 (Idaho 1999)3; see also,
e.g., Arizona ex rel. Merrill v. Turtle, 413 F.2d 683, 686 (9th Cir. 1969) (holding that the
State of Arizona lacked the authority to extradite the Indian defendant from Indian country
because the Navajo Nation has “codified and does now exercise its extradition power. This
power cannot now be assumed by or shared with the State of Arizona without ‘infring(ing)
on the right of reservation Indians to make their own laws and be ruled by them.’” (citation

3
We note that, unlike New Mexico, Idaho has assumed partial criminal jurisdiction
over crimes committed by Indians in Indian country pursuant to Public Law 280. 67 Stat.
588 (1953) (permitting states to assume criminal jurisdiction over crimes committed by or
against Indians in Indian country, with the consent of the Indian tribe) (codified as amended
at 25 U.S.C. § 1321(a) (2006)); Idaho Code Ann. § 67-5101 (1963) (assuming criminal
jurisdiction over certain offenses). However, Mathews involved the off-reservation crime
of murder, and “the State of Idaho . . . did not assume jurisdiction over murder crimes or the
execution of state court search warrants within Indian country.” 986 P.2d at 334.
Accordingly, “the limitations on state criminal jurisdiction over crimes committed within
Indian country,” were fully applicable to the Idaho Supreme Court’s analysis in Mathews.
Id. at 335.

8
omitted)). In the absence of a governing tribal procedure, the exercise of state authority to
conduct a criminal investigation in Indian country does not infringe on tribal sovereignty
because it does not affect the right of Indians to make their own laws and be ruled by them.
See Mathews, 986 P.2d at 337 (“We agree with the view that tribal sovereignty is not
infringed when a state court issued search warrant is executed within Indian country where
the state possesses jurisdiction over the underlying crime and where tribal law does not
provide a procedure for executing the warrant within Indian country.”); LeClair v. Powers,
632 P.2d 370, 375-76 (Okla. 1981) (holding that the service of state process in Indian
country did not interfere “with the self-governing activities of the Indian tribe” because it
did not violate any governing provision of the tribal code). But see State v. Cummings, 679
N.W.2d 484, 488 (S.D. 2004) (holding that the “State has no jurisdiction to act on the
reservations in South Dakota”).

{24} The general consensus among our sister states regarding a state officer’s authority
to investigate off-reservation crimes in Indian country also is supported by Hicks, which held
that “[s]tate sovereignty does not end at a reservation’s border,” because “an Indian
reservation is considered part of the territory of the State.” 533 U.S. at 361-62 (internal
quotation marks and citation omitted). The Court noted that, although the states lack
jurisdiction to implement substantive criminal laws regulating “on-reservation conduct
involving only Indians,” the states retain jurisdiction to execute state criminal process in
Indian country for off-reservation crimes. Id. at 362-63 (internal quotation marks and
citation omitted). The Court broadly defined the term “process” as “‘any means used by a
court to acquire or exercise its jurisdiction over a person or over specific property.’” Id. at
364 (quoting Black’s Law Dictionary 1084 (5th ed. 1979)). The Court reasoned that “the
reservation of state authority to serve process is necessary to prevent [such areas] from
becoming an asylum for fugitives from justice.” Id. (internal quotation marks and citation
omitted). Accordingly, the Court held that

tribal authority to regulate state officers in executing process related to the
violation, off reservation, of state laws is not essential to tribal self-
government or internal relations—to “the right to make laws and be ruled by
them.” The State’s interest in execution of process is considerable, and even
when it relates to Indian-fee lands it no more impairs the tribe’s self-
government than federal enforcement of federal law impairs state
government.

Id.

{25} Although the Court’s analysis in Hicks focused on the execution of a state search
warrant, the term “process” is not limited to warrants or summons, but, rather, encompasses
all state criminal process or procedure. Black’s Law Dictionary 1325 (9th ed. 2004) (“The
term process is not limited to summons. In its broadest sense it is equivalent to, or
synonymous with, procedure, or proceeding.” (internal quotation marks and citation
omitted)). We conclude that field sobriety tests are procedural, rather than substantive, in

9
nature because they are the investigative method by which the state enforces its substantive
law prohibiting DWI. See State ex rel. Gesswein v. Galvan, 100 N.M. 769, 770, 676 P.2d
1334, 1335 (1984) (“It is well settled that a substantive law creates, defines, or regulates
rights while procedural law outlines the means for enforcing those rights and obtaining
redress.”). Accordingly, pursuant to Hicks, Deputy Charley had the authority “to enter a
reservation (including Indian-fee lands) for enforcement purposes.” Hicks, 533 U.S. at 363.

{26} Defendant and Amicus Curiae Santa Ana Pueblo claim that our reliance on Hicks is
misplaced because the above quoted language constitutes non-binding dicta. Specifically,
they claim that the United States Supreme Court’s analysis was joined by only two other
justices and was not necessary to the opinion’s holding. We disagree. First, the opinion of
the Court was delivered by Justice Scalia and joined by five other Justices—Chief Justice
Rehnquist and Justices Ginsburg, Kennedy, Souter, and Thomas. Id. at 354. Thus, a
majority of the Court joined the analysis regarding state authority to investigate off-
reservation crimes committed by Indians in Indian country. Second, although Hicks
involved “tribal court . . . jurisdiction over civil claims against state officials who entered
tribal land to execute a search warrant against a tribe member suspected of having violated
state law outside the reservation,” the Court’s analysis of state criminal investigative
jurisdiction was essential to its holding. Id. at 355 (emphasis added). The Court held that
the tribal court lacked jurisdiction to adjudicate the Indian plaintiff’s civil claim because the
tribe lacked jurisdiction to regulate the execution of state criminal process in Indian country
for off-reservation crimes. Id. at 357-65. Accordingly, we reject Defendant’s and Amicus
Curiae’s claim that Hicks is inapplicable to this case.

{27} We recognize that the United States Supreme Court’s holding in Hicks could be
construed broadly to suggest that state officers who are investigating off-reservation crimes
in Indian country need not comply with governing tribal procedures. However, New Mexico
has a unique and venerable tradition of deferring to a “[t]ribal government’s exercise of the
sovereign power vested in them.” Benally I, 89 N.M. at 467, 553 P.2d at 1274; see State v.
Nysus, 2001-NMCA-023, ¶ 5, 130 N.M. 431, 25 P.3d 270 (noting that “the holding in
Benally I has been limited by New Mexico case law to apply only to Native Americans
illegally arrested on Indian land because of the unique circumstances of tribal sovereignty”);
cf. Garcia v. Gutierrez, 2009-NMSC-044, ¶ 65, 147 N.M. 105, 217 P.3d 591 (“Our state has
a long and laudable tradition of comity between state and tribal courts . . . .”). In light of this
tradition, we conclude that the courts of this state have adopted greater protection for tribal
sovereignty as a matter of state law. See State v. Javier M., 2001-NMSC-030, ¶ 24, 131
N.M. 1, 33 P.3d 1 (“[W]hile the federal constitution provides a minimum level of protection
below which the states may not descend, states remain free to provide greater protection.”
(internal quotation marks and citation omitted)); Cohen’s, supra, § 9.07 (noting that “nothing
in Hicks prevents a state from cooperating with tribal governments by requiring its officials
to seek tribal court warrants before conducting searches on tribal land”).

{28} The Navajo Nation does not have a tribal procedure governing the administration of
field sobriety tests. In the absence of such a codified procedure, we cannot conclude that

10
Deputy Charley’s actions infringed on the right of the Navajo Nation to make its own laws
and be ruled by them. As the Court of Appeals correctly observed,

Officer Charley scrupulously respected Navajo Nation sovereignty. Officer
Charley recognized the limits of his authority and did not arrest Defendant.
After concluding that Defendant was driving while intoxicated, Officer
Charley was faced with a predicament because he recognized he had no
authority to arrest Defendant and because no Navajo police officers were
available. Rather than allowing a suspected drunk driver to get back into his
vehicle and possibly injure or kill people, Officer Charley allowed Defendant
the opportunity to try getting someone else to give him a ride. Learning that
no ride was available, Officer Charley allowed Defendant to leave the scene
walking. There was no injury to the sovereignty of the Navajo Nation.

Harrison, 2008-NMCA-107, ¶ 15.

{29} In its amicus curiae brief, the Navajo Nation indicates that it is willing to enter into
a cross-commission agreement with San Juan County. If such an agreement had existed in
this case, then there would be no grounds for this appeal: Deputy Charley would have had
legal authority to pursue Defendant into the Navajo Nation, conduct the field investigation,
and arrest Defendant in full compliance with the sovereignty of the Navajo Nation. Cross-
commission agreements are consistent with this State’s venerable tradition of cooperation
and comity between state and tribal governments, and we encourage San Juan County to
enter into a such an agreement with the Navajo Nation in order to protect the citizens of this
State, who reside both on and off the reservation, from the danger of DWI, a problem which
transcends borders.

C. Whether Defendant’s Detention Ripened into a De Facto Arrest

{30} Lastly, Defendant and Amicus Curiae Santa Ana Pueblo claim that Deputy Charley’s
detention of Defendant exceeded the bounds of a permissible traffic stop and ripened into
a de facto arrest. They argue that this de facto arrest infringed on the sovereignty of the
Navajo Nation because it violated the tribe’s governing extradition procedures.

{31} Under the Fourth Amendment to the United States Constitution, “‘police officers may
stop a person for investigative purposes where, considering the totality of the circumstances,
the officers have a reasonable and objective basis for suspecting that particular person is
engaged in criminal activity.’” State v. Werner, 117 N.M. 315, 317, 871 P.2d 971, 973
(1994) (quoting United States v. Williams, 962 F.2d 1218, 1223 (6th Cir. 1992)). “An officer
who makes a valid investigatory stop may briefly detain those he suspects of criminal
activity to verify or quell that suspicion.” Id.

New Mexico courts follow the two-part test set forth in Terry to analyze the
reasonableness of an officer’s actions during a traffic stop. State v. Duran,

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 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836. Under Terry, “the
officer’s action [must have been] justified at its inception, and . . . it [must
have been] reasonably related in scope to the circumstances which justified
the interference in the first place.” Terry, 392 U.S. at 19-20, 88 S. Ct. 1868;
accord Duran, 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836.

State v. Funderburg, 2008-NMSC-026, ¶ 13, 144 N.M. 37, 183 P.3d 922. “A court should
consider both the length of the detention and the manner in which it is carried out when
determining whether a lawfully-initiated investigatory detention has become unlawfully
extended.” State v. Sewell, 2009-NMSC-033, ¶ 17, 146 N.M. 428, 211 P.3d 885; see also
Funderburg, 2008-NMSC-026, ¶ 16 (“An officer’s continued detention of a suspect may be
reasonable if the detention represents a graduated response to the evolving circumstances of
the situation.”).

{32} Deputy Charley initiated the traffic stop in this case, because he observed Defendant
speeding and throwing a clear bottle of yellow liquid from his vehicle. After stopping
Defendant, Deputy Charley noticed that Defendant had blood-shot, watery eyes and smelled
moderately of alcohol. In response to questioning, Defendant admitted that the discarded
bottle contained alcohol. Deputy Charley suspected that Defendant had been driving while
intoxicated and, therefore, administered a series of field sobriety tests. Based upon
Defendant’s performance on these tests, Deputy Charley determined that Defendant was
impaired by alcohol to the slightest degree. Defendant was free to, and indeed did, leave the
scene of the investigation by walking to the home of a nearby relative. Deputy Charley
subsequently secured a warrant for Defendant’s arrest, which was executed in compliance
with Navajo Nation Code procedures.

{33} It is undisputed that Deputy Charley had a reasonable and objective basis for
suspecting Defendant of criminal activity and, therefore, that the initial stop of Defendant’s
vehicle was lawful. Although Defendant and Amicus Curiae Santa Ana Pueblo allege that
the length and manner of Defendant’s detention exceeded that which was necessary for
Deputy Charley to quell or verify his initial suspicion of criminal activity, there is no
evidence in the record to support this allegation. See State v. Williamson, 2000-NMCA-068,
¶¶ 5-16, 129 N.M. 387, 9 P.3d 70 (holding that the defendant was not under de facto arrest
during a routine traffic stop, despite a brief detention following the administration of field
sobriety tests); Armijo v. State Transp. Dep’t, 105 N.M. 771, 773, 737 P.2d 552, 554 (Ct.
App. 1987) (holding that the defendant was not under de facto arrest during a routine traffic
stop, even though he was “asked to repeat the field sobriety tests and answer questions posed
by [a] second officer”). We therefore reject Defendant’s claim that his detention ripened into
a de facto arrest, which infringed on the sovereignty of the Navajo Nation.

III. CONCLUSION

{34} We conclude that state officers have the authority to enter Indian country to
investigate off-reservation crimes committed in their presence by Indians, so long as the

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investigation does not infringe on tribal sovereignty by circumventing or contravening a
governing tribal procedure. The traffic stop in this case, which included the administration
of field sobriety tests, did not circumvent or contravene the Navajo Nation Code and,
therefore, did not infringe on the sovereignty of the Navajo Nation. Accordingly, we affirm
Defendant’s DWI conviction.

{35} IT IS SO ORDERED.

____________________________________
PETRA JIMENEZ MAES, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Harrison, Docket No. 31,224

AE APPEAL AND ERROR
AE-PA Preservation of Issues for Appeal

CL CRIMINAL LAW
CL-DG Driving While Intoxicated

CA CRIMINAL PROCEDURE
CA-AT Arrest
CA-DN Detention or Custody

IL INDIAN LAW
IL-IG Indian Law, General
IL-TJ Tribal and State Authority and Jurisdiction

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