State v. PhillipsState v. Phillips
Lead Opinion
{1} Dеfendant-Appellant, Brian Phillips, appeals from his conviction for battery on a peace officer. We affirm.
BACKGROUND
{2} The victim, Officer James Roberts of the City of Bloomfield Police Department, was one of three police officers who responded to a complaint about an intoxicated person who was “loud and knocking over trash cans” in the early morning hours of September 13, 2005. Officer Roberts was the second officer to arrive. Officer Roberts was in uniform and was driving a marked patrol car. Defendant was stumbling around and unable to keep his balance. Defendant gave off a strong odor of alcohol. Defendant admitted that he had been drinking. Defendant appeared “obviously intoxicated” to Officer Roberts. From previous encounters, Officer Roberts knew that Defendant lived in another part of Bloomfield, New Mexico. In response to questioning about why he was in the particular area of town, Defendant explained
{3} Officer Roberts did not believe that he had probable cause to arrest Defendant for any crime. However, Officer Roberts was concerned that Defendant’s intoxication made Defendant a threat to himself or to others he might encounter in his intoxicated condition. In Officer Roberts’ judgment, releasing Defendant and letting him go on his way was not an option. Officer Roberts bеlieved that New Mexico law authorized him to transport Defendant to a treatment facility or to take Defendant home. At the time, the established policy of the Bloomfield Police Department was to take intoxicated persons with a known residence in Bloomfield to their homes, rather than to a treatment facility, so that the City of Bloomfield would not be charged for the cost of care at a treatment facility.
{4} Officer Roberts directed Defendant to get into the back of Officer Roberts’ patrol car, explaining to Defendant that he was going to give Defendant a ride home. Defendant seemed “fine” with being taken home and responded, “O.K.” Officer Roberts patted down Defendant but did not handcuff him. Defendant got into the back of the patrol ear, and Officer Roberts shut the door. According to Officer Roberts, “I was doing him a favor by giving him a taxi ride home free of charge, actually — so I didn’t see it as a seizure issue.” The back seat of the patrol ear was separated from the front of the car by a plastic partition. The patrol ear had no handles on the inside of the back doors, which locked automatically, so that once Defendant was in the back seat of the patrol car with the doors shut he could not get back out. As Officer Roberts was speaking to another officer, Defendant began yelling and banging on the rear driver’s side window of Officer Roberts’ patrol car. Defendant knocked the window glass out of its track, damaging the window frame. Officer Roberts returned to his patrol car and opened the driver’s side rear door, positioning himself in the angle between the door and the back seat of the car. As Defendant moved to get out of the car, he punched Officer Roberts in the face, knocking his glasses askew. Officer Roberts and the other officers subdued Defendant after a struggle. The officers handcuffed Defendant, advising him that he was under arrest.
{5} Defendant was charged with battery on a peace officer, resisting arrest, disorderly conduct, and criminal damage to property. Defendant moved to dismiss the charges, asserting that Officer Roberts had had no lawful authority to seize Defendant. In his motion to dismiss, Defendant argued thаt “Defendant was not charged with any crime, was not under arrest, and there was no danger of an immediate ‘breach of the peace.’ ”
{6} The State filed a response, citing State v. Doe (Doe II),
{7} Defendant filed a reply in which he pointed out that the Legislature had amended the Detoxification Act, repealing effective July 1, 2005, the provision that formerly authorized peace officers to take an intoxicated person into protective custody and to transport him to his residence.
{8} The district court held an evidentiary hearing on March 13, 2006. Officer Roberts was the sole witness. Defendant was presеnt but did not testify. The district court denied Defendant’s motion to dismiss in a brief order. Thereafter, the district court accepted Defendant’s conditional plea of guilty to battery on a peace officer and criminal damage to property. In the plea agreement, Defendant expressly reserved the
DISCUSSION
{9} On appeal, Defendant argues that he cannot be convicted of battery on a peace officer because Officer Roberts was acting without lawful authority when he placed Defendant in the back seat of his patrol car. While we agree with Defendant that the Legislature limited the offense of battery on a peace officer to situations where the officer-victim was acting within his actual authority in detaining the subject, we disagree with Defendant’s assertion that Officer Roberts lacked actual legal authority to take Defendant into protective custody.
Statutory Framework for Battery on a Police Officer
{10} The Legislature has defined the felony offense of battery on a peace officer as “the unlawful, intentiоnal touching or application of force to the person of a peace officer while he is in the lawful discharge of his duties, when done in a rude, insolent or angry manner.” 1971 N.M. Laws, ch. 265 § 4 [codified at NMSA 1978, § 30-22-24 (1971) ] (emphasis added). Battery on a peace officer differs from simple battery, NMSA 1978 § 30-3^1 (1963), by including an additional requirement that the victim have been “a peace officer while he is in the lawful discharge of his duties.” Battery on a peace officer is a fourth degree felony, Section 30-22-24(B); simple battery is a petty misdemeanor, Section 30-3-4.
{11} Tо place the phrase “while he is in the lawful discharge of his duties” in context, we briefly review the criminal law’s treatment of resistance to peace officers. The common law strictly distinguished resistance to lawful arrests from resistance to unlawful arrests: “When an illegal arrest is made by an officer, the person arrested may resist the arrest or the continuation of custody thereunder, but not to the extent of excessive violence.” State v. Calhoun,
{12} We read Section 30-22-24 as evincing the Legislature’s intention to codify the common law summarized in Calhoun and as authorizing felony punishment for resistance to a pеace officer only where the officer-victim had legal authority to seize the suspect. A number of well-established rules of construction lead us to this conclusion. Although the traditional common-law rule recognizing a privilege to resist an unlawful arrest was subject to criticism, see generally Ralph D. Smith, Comment, Criminal Law— Arrest — The Right to Resist Unlawful Arrest, 7 Nat. Resources J. 119 (1967), it appears to have been the majority rule in 1971 when our Legislature enacted Section 30-22-24. Moreover, as of 1971, no reported New Mexico appellate decision aрpears to have questioned the continuing vitality of Calhoun. “[Statutes will be read strictly so that no innovation upon the common law that is not clearly expressed by the legislature will be presumed. A statute will be interpreted as supplanting the common law only if there is an explicit indication that the legislature so intended.” Sims v. Sims, 1996— NMSC-078, ¶ 22,
Statutory Construction
{13} We construed the phrase “lawful discharge of his duties” in State v. Frazier,
{14} Our Supreme Court distinguished Frazier in State v. Doe (Doe I),
The strip search was an incident of the child’s illegal arrest for disorderly conduct. That arrest being illegal, in this case the search was illegal.
Section [30-22-24] defines battery upon a police officer to include an “unlawful” touching of a police officer “in the lawfuldischarge of his duties.” We need not consider whether resisting an illegal search was unlawful action by thе child. Clearly, an officer conducting an illegal search is not in the lawful discharge of his duties. Under the evidence, [Section 30-22-24] was not violated.
Id. (citations omitted). On appeal to the Supreme Court by the State, the Supreme Court affirmed our reversal of the disorderly conduct conviction but reversed our reversal of the conviction for battery on a peace officer. Doe II,
{15} The Supreme Court’s opinion in Doe II addresses three points. First, the Supreme Court prospectively abrogated the common-law privilege to resist an illegal search with force. Id. at 103,
{16} The Supreme Court’s opinion in Doe II and our opinion in Frazier collectively lead us to the following observations. First, Doe II leaves intact Frazier’s specific holding that an officer detaining a person without legal authority other than the bare fact of his employment as a peace officer is not “in the lawful discharge of his duties.” Second, the statutоry requirement that the victim have been a peace officer “in the lawful discharge of his duties” has two components: (1) whether the officer is discharging his duties, and (2) whether the officer’s discharge of his duties is lawful. As Frazier demonstrates, not every discharge of an officer’s duties will be a lawful exercise of his duties. Whether an officer is discharging his duties is determined under a test taken from agency law, Doe II,
{17} On appeal, the State argues that even if Officer Roberts lacked actual legal authority to seize Defendant, he was in the lawful discharge of his duties because he entertained a good faith belief that he had the authority to place Defendant in protective custody and was not engaged in a frolic. The State’s argument is based on a misreading of the Supreme Court’s opinion in Doe II, a reading to which our more recent cases unfortunately may have contributed. Opinions subsequent to Frazier and Doe II have come perilously close to either reading the qualifier “lawful” out of the phrase “lawful discharge of his duties,” State v. Nemeth,
{18} The State’s reading of Doe II would require us to attribute to our Supreme Court a disregard for well-established and clearly applicable rules of statutory construction designed to insure that courts respect the expressed will of the Legislature. The Supreme Court’s opinion in Doe II was a response to our holding that the initial illegality of an arrest without probable cause automatically tainted the otherwise lawful conduct of the booking officers who were conducting a routine intake search of the defendant. In its opinion in Doe II, the Supreme Court distinguished Frazier; it did not overrule it.
{19} Giving literal effect to “lawful” by limiting the felony offense of battery on a peace officer to scenarios where the peace officer is acting within his actual legal authority does not lead to unrеasonable or absurd results. Section 30-22-24 creates a felony offense that did not exist at common law. The 1971 Legislature, its thinking informed by a then still vital common-law tradition of permitting resistance to illegal arrest, easily could have concluded that a person who resists the indignity of an illegal search or seizure is not as culpable as a defendant who resists an officer who is acting lawfully, and therefore should not be subject to conviction for a felony. Furthermore, in view of the Supreme Court’s abrogation of the privilege to forcibly resist an illеgal search or seizure, construing the term “lawful discharge of his duties” according to the plain meaning of “lawful” does not mean that a defendant who resists an unlawful search or seizure will escape all criminal liability; a defendant who forcibly resists an illegal search or seizure by an officer discharging his duties is acting unlawfully and therefore may be convicted of simple misdemeanor battery. See State v. Kraul,
Was Officer Discharging His Duties?
{20} Turning to the present case, we apply these interrelated principles. We begin with the question of whether Officer Roberts was discharging his duties. Where an officer is on duty, the officer’s conduct must be so unrelated to the performance of his duties as to amount to a “personal frolic of his own” before it will be considered outside the discharge of the officer’s duties for purposes of Section 30-22-24. Doe II,
Was Officer’s Discharge of Duties Lawful?
{21} The dispositive question is whether Officer Roberts’ discharge of his duties was lawful. Under Frazier, Officer Roberts’ seizure of Defendant was lawful if Officer Roberts did not exceed his actual legal authority in seizing Defendant. On appeal the State does not argue that Officer Roberts had probable cause to arrest Defendant for a crime when he confined Defendant in the back of his patrol car; rather, the State argues that Officer Roberts had actual authority to seize Defendant and place him in protective custody under the Detoxification Reform Act, Section 43-2-2(B) (the DRA).
{22} There is no dispute that Section 43-2-18(A) of the Detoxification Act, which authorized police to transport an intoxicated person to his home, was repealed effective July 1, 2005, by the same act that enacted the DRA, and therefore was not in effect when Officer Roberts seized Defendant on September 13, 2005. The fact that Officer Roberts subjectively and mistakenly relied on a repealed statute in taking Defendant into protective custody does not mean that his seizure of Defendant necessarily was unlawful. Probable cause is measured by an objective, rather than a subjective, standard; therefore, if the circumstances observed by Officer Roberts would have provided a reasonable officer with probable cause to take Defendant into protective custody under the law in effect on September 13, 2005, we may uphold the seizure notwithstanding Officer Roberts’ subjective reliance on a repealed statute. See State v. Vargas,
{23} To establish Officer Roberts’ actual authority, the State relies on Section 43-2-8(A) of the DRA, which was in effect on September 13, 2005. Section 43-2-8(A)(2) provides that “[a]n intoxicated ... person may be committed to a treatment facility at the request of an authorized person for protective custody, if the authorized рerson has probable cause to believe that the person to be committed ... is unable to care for the person’s own safety.” Under the DRA, a police officer is an “authorized person.” Section 43-2-2(B). The DRA defines “intoxicated person” as “a person whose mental or physical functioning is substantially impaired as a result of the use of alcohol or drugs.” Section 43-2-2(H). Clearly, the information available to Officer Roberts gave him probable cause to believe that Defendant was an “intoxicated person.” “Probable сause is not subject to bright line, hard-and-fast rules, but is a fact-based determination made on a case-by-ease basis.” State v. Nyce,
CONCLUSION
{24} To summarize, we reject the State’s argument that a conviction under Section 30-22-24 can be sustained in the absence of a determination that the officer-victim was acting within his actual legal authority in seizing the defendant. However, because we are satisfied that Offiсer Roberts had probable cause to believe that Defendant was unable to care for himself, we hold that Officer Roberts was acting within his actual authority under the DRA in taking Defendant into protective custody and placing him in the back seat of his patrol ear. We therefore affirm Defendant’s conviction.
{25} IT IS SO ORDERED.
Concurrence Opinion
(specially concurring).
{26} I concur in the result of the majority opinion, but write separately because I disagree with the application of Doe II. Our Supreme Court held in Doe II that “[a]n arrest undertaken without probable cause does not vitiate all the authority of the arresting officer. Even if an arrest is effected without probable cause, a police officer is engaged in the performance of his official duties if ... [h]e is simply acting within the scope of what the agent is employed to do.”
{27} A survey of other jurisdictions reveals that many other courts apply the same analysis: “The test is whether the agent is acting within that compass or is engaging in a personal frolic of his own. It cannot be said that an agent who has made an arrest loses his official capacity if the arrest is subsequently adjudged to be unlawful.” United States v. Heliczer,