“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. James Madison’s words rang in my ears as I thought about the recent opinion the Court of Appeals rendered in State v. Wright; the opinion strives to bring these two ideas in balance, considering man’s unceasing propensity for poor decisions and power grabs. The case has to do with an incident of DWI and its subsequent investigation and prosecution. The Court struggled with the degree to which state or quasi-state actors have authority to diminish or prevent the epidemic of DWI. Following the national trend, the Court appeared to conclude that DWI is special when it comes to police conduct. In the fractious context of modern police conduct, I’m compelled to wonder whether this is sound policy.
On March 15, 2014, Roy Thompson was travelling along Highway 41. He noted two rapidly approaching vehicles, and pulled to the side of the road to allow them to pass. He observed that one of the vehicles, a white Dodge truck, was veering unsteadily along the road, nearly striking Thompson’s vehicle as it passed. Thompson followed the truck to a private residence, where he observed it strike another vehicle in the driveway, back up, and nearly hit his vehicle again. Thompson parked his vehicle and approached the driver, who was identified as Ms. Wright.
It’s at this point we should stop and offer some context as to Thompson’s identity. Roy Thompson was a reserve deputy sheriff for Torrance County. A reserve deputy sheriff is a part-time volunteer who has limited authority to enforce some laws; notably, a reserve deputy sheriff is not a commissioned, salaried officer under the Motor Vehicle Code. Here’s why this is important. Under Section 66-8-124 (A) NMSA, a person cannot be arrested for a violation of the Motor Vehicle Code except “ by a commissioned salaried peace officer who, at the time of the arrest, is wearing a uniform clearly indicating the peace officer’s official status” So, reserve deputies lack statutory authority to make arrests. The thing is, they look almost identical to a commissioned and salaried office, particularly to the untrained (or inebriated) eye. They wear uniforms and badges that identify them as deputies, and they conduct their duties in marked patrol cars.
Upon approaching Ms. Wright, who was still seated in her vehicle, Thompson identified himself as a reserve deputy, and he asked if she had been drinking. She told him she’d drunk four green beers, at which point, he told Ms. Wright to “hang tight” until Deputy Ron Fulfer arrived on scene. Prior to approaching her vehicle on foot, he’d illuminated his vehicle spotlight on her vehicle, and he returned to his vehicle after speaking with Ms. Wright, to await Deputy Fulfer, who arrived on scene four or five minutes later. Ms. Wright remained in her vehicle during that time, following Thompson’s directive. When Deputy Fulfer arrived, he conducted a DWI investigation, which resulted in an aggravated DWI charge.
Not surprisingly, in the ensuring prosecution, defense moved to suppress all of Deputy Fulfer’s gathered evidence, arguing that such gathering resulted from Thompson’s unauthorized detention of Ms. Wright, citing Article II, Section 10 of the New Mexico Constitution. The district court, “granted Defendant’s suppression motion following a hearing, concluding that (1) Thompson’s ‘temporary detention’ of Defendant constituted an ‘arrest’ within the meaning of NMSA 1978.” The district court further concluded that the arrest was not authorized because Thompson was not a commissioned officer. Ultimately, the court concluded that the arrest did not violate the Fourth Amendment, but did violate Article II, Section 10 of the New Mexico Constitution.
On appeal, the Court reversed, a surprising result given its reliance upon interstitial analysis. New Mexico’s interstitial approach echoes Justice Brennan’s comment that “the United States Constitution sets a floor for civil liberties protections, but not a ceiling. States can broaden constitutional rights as they see fit, as long as they base their decisions even perfunctorily on their own constitutions.” Article II, Section 10 of the New Mexico Constitution provides “significantly greater protections than those afforded under the Fourth Amendment. Further, “New Mexico courts have specifically applied this greater constitutional protection to motorists.
The interstitial approach looks first to whether the U.S Constitution would protect the right being asserted, and then looks to whether state constitutional law would protect it. Here, the Court found Thompson’s statutory violation did not amount to a 4th Amendment violation, citing to Slayton, which clarified 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. Having so determined, the Court analyzed whether the action violated Article II, Section 10 of the New Mexico Constitution, addressing searches and seizures. The reasonableness of the search determines this analysis, as “the Constitution only proscribes … those searches and seizures which are unreasonable. In keeping with its federal analogue, this amounts to a weighing of the degree of intrusion on Ms. Wright’s privacy against the government interests at stake. Ultimately, the Court concluded New Mexico’s strong interest in preventing and prosecuting DUI outweighed Ms.Wright’s privacy interests.
DWI does remain a huge problem in New Mexico; the opinion correctly balances the privacy intrusion against the State’s strong interest in ending drunk driving. Notwithstanding, I share Judge Vargas’s concern the majority opinion missed an opportunity to give substantive guidance to law enforcement, curbing indiscretions that could metastasize into real abuses of power; to wit, “the majority fails to consider the broader public interest in requiring that police and their volunteer officers comply with our statutory laws.”
The Court did note that “we take this opportunity to warn law enforcement agencies that this opinion does not give them carte blanche to allow reserve deputies to detain motorists.” However, like Judge Vargas, “absent suppression, I have little confidence that Thompson’s unlawful actions will be deterred.” It is undisputed that Thompson was acting outside his statutory authority, that he was cloaked with the mantle and appearance of state authority, and that he was aware he lacked statutory authority for his actions. Yes, he did not ask Ms. Wright to exit her vehicle, and he did not brandish his weapon or handcuff her, and all of this shows appropriate restraint on his part. But, small abuses of power, like acting outside one’s authority, often metastasize into larger ones, making oversight and accountability incredibly important. In any case, the New Mexico Supreme Court just granted cert, so we’ll see if Judge Vargas’s concern is addressed.