(concurring in part and dissenting in part).
30. I concur with Sections 11(A), 11(B)(1), and 11(B)(3) of the majority opinion, but I respectfully dissent from Section 11(B)(2)(b). I would not reach the issue addressed in Section 11(B)(2)(a). The basis for the trial court’s ruling is unclear and the testimony was conflicting on a critical point. I would remand to the trial court with directions to make findings of fact and to determine whether there was probable cause to justify the warrantless search of Child as a search incident to arrest.
31. The testimony. of Officers Jackson, Baca, and Mondragon concerning which officers confronted which boy related to the propriety of the search and is conflicting. Officer Jackson testified that he smelled alcohol on Child and asked him if he had been drinking. Jackson also testified Child responded “that they had gone outside and he had drank one Budweiser beer.” Officer Baca testified that he confronted Child’s friend and that he smelled alcohol on him. Officer Mondragon testified that he was present when Officer Summers made statements about smelling alcoholic beverages and heard Summers asking “the other kid” whether he had been drinking. Mondragon also testified that Jackson and Summers had told him that they could smell alcohol on “the other individual that was with [Child].”
32. I believe that the testimony of the three officers shows that Jackson and Summers confronted one boy inside the gym while Mondragon and Baca confronted the other. There is no dispute that Mondragon was the one who later searched Child outside the gym, finding a loaded semi-automatic handgun on Child. Jackson testified that he and Summers confronted Child inside the gym while Mondragon and Baca confronted Child’s friend, and Baca testified that he confronted Child’s friend. Only Mondragon testified that he confronted Child inside the gym. I think this difference is critical.
33. I agree with the majority that the smell of alcohol on a minor, without more, would not justify a warrantless arrest of Child for violation of the misdemeanor offense of being a minor in possession of alcohol. NMSA 1978, § 32A-2-3(A)(2) (Repl. Pamp.1995); NMSA 1978, § 60-7B-KB), (E) (Repl.Pamp.1994). If the trial judge resolved the conflict in the testimony by finding that, despite Mondragon’s testimony to the contrary, Mondragon actually confronted Child’s friend rather than Child inside the gym, then there was more evidence: testimony from Jackson that Child smelled of alcohol; from Mondragon that he heard Summers questioning Child about alcohol; from Mondragon that Summers and Jackson communicated to him that they smelled alcohol on Child; from Jackson that Child admitted a misdemeanor (minor receiving alcohol); as well as the fact that Child was trying to enter or re-enter the dance through the wrong door.
34. We view the evidence in the light most favorable to affirming the decision of the trial court. See State v. Lankford, 92 N.M. 1, 2, 582 P.2d 378, 379 (1978) (appellate court must view evidence in light most favorable to state after conviction in trial court). I believe that the police officers would have had probable cause to believe that Child and his friend were carrying alcohol back into the gym on their persons, either for their own consumption or to give to others. See State v. Warren, 103 N.M. 472, 476-77, 709 P.2d 194, 198-99 (Ct.App.1985) (arresting officer may combine sensory perceptions with reasonable inferences and information provided by other officers to give rise to probable cause that misdemeanor was being committed in officer’s presence). Alcoholic beverages were not permitted in the gym, the dance was set up to allow entry through only one door, and police security was obtained. These facts suggest that trouble of this sort was anticipated. Child’s sneaking back in with alcohol on his person would be a misdemeanor committed in the officers’ presence, thus justifying a warrantless arrest and a substantially contemporaneous search incident to that arrest. See In re Doe, 89 N.M. 83, 85, 547 P.2d 566, 568 (Ct.App.) (since officers had probable cause to arrest, seizure of marijuana which was “substantially contemporaneous” with formal arrest was product of proper search incident to arrest even though officers testified arrest occurred after seizure), cert. denied, 89 N.M. 206, 549 P.2d 284 (1976); see also Rawlings v. Kentucky, 448 U.S. 98, 110-11, 100 S.Ct. 2556, 2564-65, 65 L.Ed.2d 633 (1980). Warrantless arrest of a child is justified in the same circumstances as warrantless arrest of an adult. See NMRA 1996, 10-206 & Committee Commentary.
35. The fact that Child turned out not to actually have alcohol on his person does not invalidate the arrest. See State v. Luna, 93 N.M. 773, 777, 606 P.2d 183, 187 (1980) (arrest is not invalidated because officer gave wrong reasons for arrest, provided proper charge is based upon facts known to officer at time of arrest). LaFave states:
Though the “in presence” rule might be construed as requiring that the misdemeanor in fact have occurred in the officer’s presence, the modern view is that the officer may arrest if he “has probable cause to believe the offense is being committed in his presence.” This is sound, for it provides a workable standard (based on how the situation is reasonably perceived at the time, rather than how it turned out) for judging police conduct, and makes it apparent that the officer’s senses need not directly detect the misdemeanor so long as they reveal facts providing the reasonable belief that the offense is now occurring.
1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 3.5, at 242-43 (1984) (footnotes omitted). New Mexico follows this approach. See City of Roswell v. Mayer, 78 N.M. 533, 534-35, 433 P.2d 757, 758-59 (1967); Warren, 103 N.M. at 476, 709 P.2d at 198.
36. Mondragon testified that Jackson’s and Summers’ communications to him about the smell of alcohol did not really play a part in his conducting the patdown and that he thought it was “a safety situation.” An officer’s subjective legal analysis, however, is not relevant to our determination of the eonstitutionality of the search. See State v. Bolton, 111 N.M. 28, 42, 801 P.2d 98, 112 (Ct.App.), cert. denied, 111 N.M. 16, 801 P.2d 86 (1990); State v. Apodaca, 112 N.M. 302, 305, 814 P.2d 1030, 1033 (Ct.App.), cert. denied, 112 N.M. 220, 813 P.2d 1018 (1991).
37. Because I believe the search of Child was justified as a search incident to arrest, I would not reach the question of whether the search was also justified as a search based upon probable cause plus exigent circumstances. I would remand and direct the court to make findings of fact on the critical issues and to apply the probable cause standard for the search, but without taking additional evidence. See Corlett v. Smith, 106 N.M. 207, 211, 740 P.2d 1191, 1195 (Ct.App.) (remand for specific findings on determinative issue when there is doubt or ambiguity on basis for court’s ruling), cert. denied, 106 N.M. 174, 740 P.2d 1158 (1987); State ex rel. Human Servs. Dep’t v. Coleman, 104 N.M. 500, 505, 723 P.2d 971, 976 (Ct.App.1986) (may remand when there is question about basis of court’s ruling).