State v. MontanoState v. Montano
Lead Opinion
{1} Roy Montano (Defendant) was convicted of aggravated fleeing from a law enforcement officer in violation of
BACKGROUND
{2} On September 4, 2013, Deputy Glenn Russ with the Curry County Sheriff's Office was working as an "investigator." He was wearing the clothes that investigators were required to wear: "a dress shirt with tie, dress slacks, and dress shoes." His badge was displayed on the breast pocket of his shirt. He was driving a Ford Expedition that had no decals, striping, insignia, or lettering on the front, back, or sides of the vehicle. However, the vehicle had a government license plate, wigwag headlights, red and blue flashing lights mounted on the front grill and the top of the rear window, flashing brake lights, and a siren.
{3} Around noon that day, while Deputy Russ was driving within the Clovis, New Mexico city limits, he observed Defendant enter a vehicle and begin driving. Russ initially thought Defendant was someone else whom Russ believed had an outstanding warrant. Russ approached Defendant's vehicle from behind and checked the license plate. Russ determined that the vehicle was registered to Defendant, not the other person, but that the registration for Defendant's vehicle had expired. At that point Russ attempted to *6stop Defendant for the registration infraction by "utilizing the [red and blue flashing] lights" on his vehicle. Defendant then made a few turns and ran a stop sign, at which point Russ activated his vehicle's siren. Defendant continued driving through a residential neighborhood at speeds that exceeded the posted speed limits and failed to stop at additional stop signs and intersections. Defendant came to a stop after his vehicle jumped a curb and drove onto an adjacent easement after he attempted to turn by braking and sliding through an intersection. Russ then approached the vehicle, removed Defendant, placed him on the ground, and handcuffed him. The pursuit lasted "a couple of minutes" in total. Undersheriff Michael Reeves, also of the Curry County Sheriff's Office, arrived at the scene after Defendant was already in custody.
{4} Defendant was charged with aggravated fleeing, contrary to
DISCUSSION
{5} In 2003, the Legislature enacted the Law Enforcement Safe Pursuit Act (LESPA), 2003 N.M. Laws, ch. 260, §§ 1-4. LESPA, which is codified at
Aggravated fleeing [from] a law enforcement officer consists of a person willfully and carelessly driving his vehicle in a manner that endangers the life of another person after being given a visual or audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by a uniformed law enforcement officer in an appropriately marked law enforcement vehicle in pursuit in accordance with the provisions of the [LESPA].
{6}
{7}
Any driver of a motor vehicle who willfully fails or refuses to bring his or her vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a misdemeanor. The signal given by the police officer may be by hand, voice, emergency light or siren. The officer giving such signal shall be in uniform, prominently displaying the officer's badge of office, and the officer's vehicle shall be appropriately marked showing it to be an official police vehicle.
Nat'l Comm. on Unif. Traffic Laws & Ordinances, Uniform Vehicle Code & Model Traf fic Ordinance *7§ 11-911(a) (2000). A number of states have laws similar to
I. UNIFORMED LAW ENFORCEMENT OFFICER
{8} We first address whether Deputy Russ was "uniformed", i.e., wearing a uniform on September 4, 2013, within the meaning of
{9} "When an appeal presents an issue of statutory construction, our review is de novo." State v. Tafoya ,
A. The Plain Meaning of "Uniform"
{10}
{11} Webster's Third New International Dictionary 2498 (Unabridged ed. 1986) defines "uniform" as "dress of a distinctive design or fashion adopted by or prescribed for members of a particular group ... and serving as a means of identification[.]" (Emphases added.); accord Uniform , New Oxford American Dictionary 1890 (3d ed. 2010) (defining a uniform as "the distinctive clothing worn by members of the same organization or body"). "Dress," in turn, is defined as "utilitarian or ornamental covering for the human body: as ... clothing and accessories suitable to a specific purpose or occasion[.]" Dress , Webster's Third New Int'l Dictionary 689 (Unabridged ed. 1986) (emphasis added).
{12} This definition of uniform is significant in two respects. First, a uniform consists of clothing, as distinguished from, for example, only a law enforcement officer's badge. Stated another way, equipment alone, without distinctive clothing, is not "dress of a distinctive design or fashion[,]" i.e., it is not a uniform. Cf. 2.110.3.8(B)(2) NMAC (distinguishing between "holsters, ... uniforms, belts, badges and related apparatus" as items eligible for purchase with funds from the Law Enforcement Protection Fund Act,
{13} Deputy Russ's clothing was not of a distinctive design or fashion and did not serve to identify him as a law enforcement officer. On the contrary, the purpose of his outfit was, if anything, to allow him to blend in with the general public. For purposes of applying the plain meaning of uniform, it matters not that as an investigator Russ was required to wear civilian clothes: they did not distinguish him from the general public any more than the dress clothing that lawyers generally must wear in court constitutes a uniform that distinguishes them from persons who work in other occupations where dress clothes are the norm. Further, Russ's badge was not an article of clothing, even though it, too, may be a separate indicia of law enforcement officer status. Similarly, handcuffs and a holstered firearm may identify the person wearing them as a law enforcement officer, but they do not amount to clothing. Thus, absent some basis for not applying the plain meaning rule, which we *8now consider, Deputy Russ was not "uniformed" as that term is used in
B. Other Statutes
{14} In addition to looking to its plain meaning, in construing a statute, a court will consider related statutes. Statutory language "may not be considered in a vacuum, but must be considered in reference to the statute as a whole and in reference to statutes dealing with the same general subject matter." State v. Rivera ,
{15} We discern no inconsistency between
{16} First,
{17} Second, the statutory history of
No person shall be arrested for violating the Motor Vehicle Code [NMSA 1978, Section 66-1-1 to -8-141 (1978, as amended through 2017) ] 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.
When enacted in 1961,
{18} Third, Section 66-8-125(C) parallels the current language of
Members of the New Mexico [S]tate [P]olice, sheriffs, and their salaried deputies *9and members of any municipal police force may not make arrest for traffic violations if not in uniform; however, nothing in this section shall be construed to prohibit the arrest, without warrant, by a peace officer of any person when probable cause exists to believe that a felony crime has been committed or in nontraffic cases.
{19} Fourth, Section 66-7-332(A), originally enacted in 1978, provides that:
Upon the immediate approach of an authorized [by the state police or a local law enforcement agency] emergency vehicle displaying flashing emergency lights or when the driver is giving audible signal by siren the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in that position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer .
(Emphasis added.) This statute therefore mandates, independent of
{20} Section 66-7-332 together with Section 66-8-116,
C. Archuleta and Maes
{21} The State argues that State v. Archuleta ,
{22} Initially, we observe that the defendants in Archuleta and Maes were not arrested and prosecuted for violating
{23} We note also that the facts of Archuleta and Maes , and as a result the questions to be resolved, were different than those of the case at bar. In Archuleta , the police officer, a member of the Albuquerque Police Department (APD), was in civilian *10clothes but driving a marked police vehicle on a major street in Albuquerque, New Mexico.
{24} In Maes , two State Police officers wearing "Basic Duty Uniforms" (BDUs) and driving an unmarked vehicle stopped the defendant for traffic infractions.
with the words 'STATE POLICE' in large bold yellow lettering on the sleeves, the word 'POLICE' in large bold white lettering on the right shoulder area, a smaller triangular cloth patch with the words 'STATE POLICE' also on the right shoulder; and, on the back of the shirt, the word 'POLICE' in large bold white lettering in two places; an equipment belt, holster, and firearm; and a metal police badge hung from one of the front pockets.
Id. ¶ 11. Thus, the practical question in Archuleta and Maes was not whether, as here, a badge without more suffices as a uniform (indeed, the significance of a badge to the determination of whether a law enforcement officer is in uniform was not addressed at all in either opinion), but whether
{25} The State argues that Deputy Russ's attire satisfied a two-part test articulated in Archuleta for being in a "uniform" as that term is used in these statutes:
[W]e adopt two alternative tests for determining if an officer is in "uniform" within the intent of the statute; one, whether there are sufficient indicia that would permit a reasonable person to believe the person purporting to be a peace officer is, in fact, who he claims to be; or, two, 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.
{26} With respect to the subjective prong of the test, the State maintains that the evidence showed that Defendant recognized Deputy Russ as a law enforcement officer, because he did not simply fail to pull over when signaled to stop and instead "reacted to Russ's presence by turning down various streets, driving through stop signs, and accelerating to 55 miles per hour." The mere fact that a motorist speeds away from a vehicle that engages emergency lights does not prove that he or she knows that the driver of the other vehicle is a law enforcement officer. Another plausible inference is that the motorist suspects that the driver is someone who is only posing as a law enforcement officer. Moreover, it certainly would not follow from Defendant's response that he recognized Russ-who was still inside the vehicle-as a law enforcement officer on the basis of his clothing, badge and equipment as opposed to Russ engaging his vehicle's flashing and alternating lights. The State's argument effectively would eliminate the uniform element of the aggravated fleeing crime, a proposition we decline to accept. In any event, there is no evidence in the record to support the State's supposition. In fact, Russ testified that he did not know what Defendant was thinking.
{27} Our more fundamental concern with applying the two-part Archuleta test to
{28} Lastly, the State points to the discussion in Archuleta of the 1968 amendment of
Deputy Russ's attire clearly would have qualified as a uniform under this [pre-1968] definition, because he was a certified peace officer, wearing his badge on his chest pocket, 'prominently displayed'....
*12Logically, if Deputy Russ's attire qualified as a uniform under this more restrictive definition, it also must qualify under today's less restrictive definition.
{29} We respectfully question this inference in Archuleta . Prior to the 1968 amendment, a law enforcement officer attired in gym shorts and a t-shirt perhaps could arrest a motorist for a misdemeanor violation of the Motor Vehicle Code or other law relating to motor vehicles so long as he or she displayed a badge of office; after the amendment, we submit, this would not be permitted. Thus, it is difficult to understand how eliminating language that a badge, without more, constitutes a uniform makes less restrictive the requirement in
{30} To be clear, we have no quarrel with the conclusion in Archuleta and Maes that a law enforcement officer need not be in full uniform in order to stop, cite, and/or arrest a motorist for a misdemeanor traffic or other motor vehicle violation pursuant to
D. Applying the Plain Meaning of "Uniform" to Sections 30-22-1.1A and 30-22-1(C) Does Not Lead to a Result That Is Absurd or Contrary to Clearly Manifested Legislative Intent
{31} While "the plain meaning rule is not absolute," it is the norm. Chavez v. Mountain States Constructors ,
*13{32} Does application of the plain meaning of "uniform" to
{33} We emphasize that construing
{34} It matters not that an argument might be made that it would be better policy to allow nonuniformed law enforcement officers to make arrests for violation of
II. APPROPRIATELY MARKED LAW ENFORCEMENT VEHICLE
{35} We now address whether an "unmarked" police vehicle, that is, one with no lettering or insignia anywhere on the exterior, nevertheless may constitute an "appropriately marked" law enforcement vehicle for purposes of
A. The Plain Meaning of "Appropriately Marked"
{36} Our analysis again begins with the plain meaning of "appropriately marked." Webster's Third New International Dictionary 1383 (Unabridged ed. 1986) defines "marked" as "having a mark." More usefully, *14Webster's then broadly defines "mark" as "something that gives evidence of something else." Marked , Webster's Third New Int'l Dictionary 1382 (Unabridged ed. 1986). Within that general definition, Webster's provides the following subdefinition, among others: "a character, device , label, brand, seal, or other sign put on an article esp[ecially] to show the maker or owner, to certify quality, or for identification[.]"
{37} In the context of
B. Resolving the Ambiguity in "Appropriately Marked"
{38} Notwithstanding our conclusion that the plain meaning of "appropriately marked," as used in
{39} A statute's ambiguity is one circumstance in which we will not apply the plain meaning rule to construe it. "We do not depart from the plain language of a statute unless we must resolve an ambiguity[.]" Progressive Nw. Ins. Co. v. Weed Warrior Servs. ,
{40} "When a statute's language is ambiguous or unclear, we look to legislative intent to inform our interpretation of the statute." Ortiz v. Overland Express ,
[T]he officer's conduct, wearing his uniform, being in a marked car, and signaling the defendant to stop, establishes a defendant's *15knowledge that he is fleeing a police officer. As such, it is a fair inference that the Legislature intended to make those parts of the officer's conduct that establishes scienter , i.e., the accused's knowledge that he is fleeing an officer, elements of the crime of aggravated fleeing .
Padilla ,
{41} Given this intent, are the siren and flashing emergency lights on Deputy Russ's vehicle properly understood to be "appropriate marks" that identified it as a law enforcement vehicle? Defendant argues generally that a motorist cannot know that a vehicle that lacks identifying insignia or lettering is a law enforcement vehicle, because "lots of vehicles have flashing lights." Defendant's point is that, without an insignia or lettering specifically indicative of law enforcement, it is not possible to distinguish a vehicle with flashing lights from, for example, fire department vehicles or ambulances. Thus, Defendant would have us conclude it is necessary for a vehicle to have insignia or lettering in order to meet the legislative intent: establishing that it is a law enforcement officer who is pursuing the motorist and signaling him or her to stop.
{42} We are not persuaded. Pursuant to Section 66-7-332(A) discussed above, a motorist who sees a vehicle with flashing emergency lights and/or hears its siren must pull off the road and stop. Therefore, whether the motorist can differentiate a police vehicle from, say, an ambulance, is of no consequence for purposes of establishing the initial obligation to stop. Stated another way, a law enforcement vehicle is "appropriately marked" so long as it has sufficient equipment to trigger the motorist's obligation under Section 66-7-332 to come to a stop. Once the motorist's and the law enforcement officer's vehicles have come to a stop and the officer (assuming he is in uniform) emerges from his vehicle, the officer's identity as law enforcement will be confirmed. If at that point the motorist drives off, he or she will violate
{43} We also observe that Deputy Russ's vehicle in any event had multiple sets of specialized lights to distinguish it from civilian and other emergency vehicles. He described the vehicle as being equipped with red and blue flashing lights. In addition, the vehicle was equipped with wigwag headlights that flashed in an alternating sequence. Defendant did not establish on cross-examination of Russ or Undersheriff Reeves, or through other evidence presented as part of the defense case, whether any non-law-enforcement emergency vehicles have flashing red and blue emergency lights that are located inside the vehicle or on its grill as opposed to on the top of the vehicle. Regardless, we can note that the absence of any flashing lights attached to the top of the vehicle would appear to distinguish Russ's vehicle from any other emergency vehicle. Further, Defendant did not establish that any emergency vehicles other than law enforcement vehicles are equipped with wigwag headlights. On the basis of similar facts, the court in People v. Estrella ,
C.
{44} New Mexico courts will avoid construing one portion of a statute in a manner that renders another portion superfluous. State v. Juan ,
{45} We disagree for several reasons. First, as the State points out, under
{46} We are sensitive to the public concern expressed over the past several decades about persons posing as law enforcement officers in vehicles equipped with emergency lights and sirens who stop and prey upon other motorists. "It is an all too sad fact that persons have been victimized as a result of their trusting criminals who were impersonating police officers to facilitate crimes." A.F. v. State ,
CONCLUSION
{47} The foregoing rules of statutory construction require that, as used in
{48} We reverse Defendant's conviction for aggravated fleeing in violation of
{49} IT IS SO ORDERED.
WE CONCUR:
LINDA M. VANZI, Chief Judge
Notes
We note as well that the second sentence of
The State's final argument regarding the uniform issue relies on
Even if the plain meaning of uniform were applied to
Concurrence Opinion
{50} I concur in the Majority Opinion's application of "appropriately marked" to the vehicle driven by Deputy Russ relative to the aggravated fleeing statute, as that term appears in
{51} To determine whether Deputy Russ-adorned in a dress shirt, pants, a tie, and accessorized by his holster, sidearm, extra sidearm magazines, handcuffs, and his official sheriff's department badge pinned upon his chest-was in uniform for purposes of
{52} "Our primary goal when interpreting statutory language is to give effect to the intent of the [L]egislature." State v. Torres ,
*18
{53} In noting that the Legislature had removed language from what is now Section 66-8-124-which provided "uniform means an official badge prominently displayed, accompanied by a commission of office"-the Archuleta Court concluded that the Legislature intended the definition of "uniform" to be "less restrictive, no doubt recognizing that modern day police officers may have more than one uniform or may on occasion wear combinations thereof."
{54} In affirming this expression of legislative intent and applying Archuleta's objective test for determining whether an officer is in uniform, our Court in Maes held that non-traditional dress or garments, adorned with police lettering and accompanied by police badge, would constitute a uniform as that term is used in
{55} There can be little doubt that we may infer that Deputy Russ's official badge conveyed words and symbols to the same effect as the cloth shield on the windbreaker in Archuleta or cloth garments in Maes -such as "Sheriff's Department" or "Sheriff." The Majority's rejection of the objective sufficient indicia of law enforcement authority test, in favor of a plain meaning of the word "uniformed" analysis, is inapposite to our Court's precedent. In so doing, the Majority would displace this Court's prior discernment of legislative intent for "uniform" and "in uniform," thus leading "to an absurd or unreasonable result." Marshall ,
{56} Because I would hold that the tie, dress shirt, dress pants, badge, and the accouterments of law enforcement authority worn and displayed by Deputy Russ would sufficiently notify any reasonable person that the man they encountered was not Mr. Russ, but Deputy Russ, I respectfully dissent.